WONOUTH  PORTLAND  CBAENT  COMPANY 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE  LAW 

OP 

PROBATE  AND  ADMINISTRATION 

FOR 

NEBRASKA , 

INCLUDING 

GUARDIANSHIP  AND  ADOPTION  OF  CHILDREN, 

WITH 

FORMS 

SECOND  EDITION 
ADAPTED  TO  OREGON 

BY 

ARTHUR  K.  DAME,  A.  B., 

Of  the  Fremont,  Nebraska,  Bar 


POETLAND,  OREGON" 

GEORGE  A.  BATESON  &  CO.,  INC. 
1915 


COPYEIGHT,   1902 
BY 

AETHUE  K.  DAME 

COPYRIGHT,  1909 

BY 
AETHUE  K.  DAME 

COPYEIGHT,  1915 

BY 
AETHUB  K  DAME 

T 

D  /*a.|.  p 
1915 


SAN  FRANCISCO 

THE  FILMER  BROTHERS  ELECTROTYPE  COMPANY 
TYPOGRAPHERS  AND  STEREOTYPERS 


PREFACE  TO  SECOND  EDITION. 


The  many  new  questions  in  regard  to  wills  and  settle- 
ments of  estates  that  have  been  decided  by  our  supreme 
court  during  the  last  thirteen  years,  as  well  as  changes 
in  statutory  law,  seem  to  demand  a  new  edition  of  Pro- 
bate and  Administration.  With  but  one  exception 
these  cases  merely  apply  old  and  well-established  rules 
to  new  conditions  without  overruling  earlier  cases. 
The  courts  have  made  no  radical  changes  in  probate 
law.  The  legislature  has  made  some  sweeping  changes 
providing  for  dispensing  with  administration  in  some 
cases,  abolishing  dower  and  curtesy,  and  substituting 
an  interest  in  fee  by  virtue  of  the  marital  relation  in 
place  of  such  estates.  The  latter  act  has  been  pretty 
thoroughly  construed  by  the  supreme  court. 

The  first  edition  has  been  cited  and  approved  by  the 
courts  of  other  states  as  well  as  of  Nebraska. 

The  entire  work  has  been  revised  and  rewritten  and 
much  new  matter  added.  A  few  changes  in  arrange- 
ment will  be  noticed,  particularly  in  Chapter  II,  which 
has  been  given  a  more  appropriate  title,  "Preparation 
of  Wills,"  and  forms  of  clauses  most  frequently  used 
in  drafting  wills  added. 

At  the  suggestion  of  the  publisher,  I  made  a  careful 
study  of  Oregon  probate  and  guardianship  law  and 
practice,  and  finding  that  the  substantive  law  was  sub- 
stantially the  same  in  both  states,  and  that  the  differ- 
ences in  practice  were  confined  to  but  few  matters, 

(iii) 


729412 


IV  PREFACE   TO    SECOND   EDITION. 

guardianship  law  being  identical  with  our  own,  I  have 
adapted  or,  perhaps  more  properly  speaking,  annotated 
the  book  to  Oregon  by  including  the  Oregon  statutes 
where  they  differed  from  those  of  Nebraska,  citing  the 
Oregon  cases,  and  inserting  a  few  special  Oregon 
forms.  The  new  edition,  therefore,  containing  a  gen- 
eral statement  of  the  principles  governing  the  execution 
and  probate  of  wills,  the  various  matters  and  proceed- 
ings connected  with  the  settlement  of  estates,  the  ap- 
pointment, powers  and  duties  of  guardians,  and  adop- 
tion of  children,  with  a  systematic  arrangement  of  the 
statutory  law  of  both  states  on  the  different  topics,  will 
be  of  value  to  the  Oregon  as  well  as  the  Nebraska 
lawyer.  All  distinctively  Oregon  matter  is  ' '  set  solid, ' ' 
so  that  its  local  character  can  be  told  at  a  glance,  and 
appears  in  the  index,  which  gives  both  page  and  sec- 
tion number.  The  forms  are  indexed  in  connection 
with  the  different  subheads. 

A  brief  summary  of  the  laws  passed  at  the  last  ses- 
sion of  the  legislature  affecting  probate  and  guardian- 
ship matters  has  been  added  as  an  Appendix. 

I  wish  to  extend  my  thanks  to  the  members  of  the 
profession  for  the  many  valuable  suggestions  I  have 
received  from  them  in  regard  to  the  revision,  and  I 
trust  that  the  new  edition  will  be  of  great  help  in  the 
solution  of  questions  arising  in  the  settlement  of  es- 
tates and  guardianship  matters. 

Fremont,  May  3,  1915. 

AETHUE  K.  DAME. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

ORGANIZATION,    POWERS   AND    JURISDICTION    OF 
THE  COUNTY  COURT. 

§     1.  Establishment  of  Courts  of  Probate  Jurisdiction. 

2.  Bond  and  Oath  of  County  Judge. 

3.  Liability  of  His  Sureties. 

4.  Vacancies. 

5.  How  Vacancies  Filled. 

6.  Disqualification  of  County  Judge. 

7.  Effect  of  Disqualification. 

8.  Appointment  of  Acting  County  Judge. 

9.  Jurisdiction  of  County  Court — Statutory. 

10.  Equitable  Nature  of  County  Court  Proceedings. 

11.  Implied  or  Inherent  Jurisdiction. 

12.  Clerk  of  County  Court. 

13.  County  Court  Practice  and  Procedure. 

14.  Process  and  Service  Thereof. 

15.  Attorneys. 

16.  Guardians  ad  Litem. 

17.  Ke cords  of  County  Court. 

18.  Certifying  Records. 

19.  Probate  Books  as  Public  Becords. 

20.  County  Judges'  Fees. 

21.  Sheriffs'  Fees. 

22.  Printers'  Fees. 

23.  Witnesses'  and  Appraisers'  Fees. 

24.  Original  Jurisdiction  of  District  Court  Over  Probate  Matters. 


CHAPTER  II. 

PREPARATION  AND  DRAFTING  OF  WILLS. 

25.  Will — Definitions. 

26.  Elementary  Eules  for  Drafting  Wills. 

27.  Restrictions  on  Devises  and  Bequests. 


VI  TABLE    OF    CONTENTS. 

28.  Rule  in  Shelley's  Case. 

29.  Devise  of  an  Estate  in  Fee  Simple. 

30.  Presumption  as  to  Conveyance  of  Fee. 

31.  Determinate  Fees. 

32.  Life  Estates. 

33.  Future  Estates. 

34.  Estates  upon  Condition,  or  Contingency. 

35.  Trusts. 

36.  Charities. 

37.  Particular  Words  and  Phrases  Commonly  Used  in  Wills  Defined. 

38.  Object  of  Bequest  or  Devise. 

39.  Object  of  Bequest  or  Devise — Concluded. 

40.  Eesiduary  Estate. 


CHAPTER  III. 

EXECUTION  OF  WILLS. 

§  41.  Statutory  Requirements  Concerning  Signature  and  Witnesses. 

42.  Signature. 

43.  Witnesses. 

44.  Attestation. 

45.  Alterations. 

46.  Republication. 

47.  How  Nuncupative  Will  Executed. 

48.  Soldiers'  and  Marines'  Wills. 


CHAPTER  IV. 

TESTAMENTARY  CAPACITY. 

8  49.  Who  may  Make  Wills. 

50.  Sound  Mind. 

51.  Physical  Weakness. 

52.  Old  Age. 

53.  Insanity. 

54.  Insane  Delusions  and  Eccentricities. 

55.  Will  Executed  During  Lucid  Interval. 

56.  Drunkenness. 

57.  Lawful  Influence. 

58.  Lawful  Influence — Concluded. 


TABLE   OF    CONTENTS.  VU 

CHAPTER  V. 

REVOCATION  OF  WILLS. 

I  59.  Definition. 

60.  How  Wills  Kevoked — Statutory  Provisions. 

61.  Eevocation  of  Will  by  Destroying  It. 

62.  Eevocation  by  Executing  New  Will. 

63.  Implied  Eevocations. 

64.  Changes  in  the  Estate. 

65.  Death  of  Devisee  or  Legatee. 

66.  Eevocation  by  Marriage. 

67.  Eevocation  by  Birth  of  Issue. 

68.  Eevocation  by  Divorce. 

69.  Eevivor  of  Wills. 

CHAPTER  VI. 

LOST  WILLS. 

§  70.     Presumption  from  Failure  to  Find  Will. 

71.  Jurisdiction  of  County  Court  Over  Lost  Wills. 

72.  Evidence  Necessary  to  Establish  Lost  or  Destroyed  Will. 

CHAPTER  VII. 

PROCEEDINGS  TO  COMPEL  PRODUCTION  OP  WILL 

IN  COURT. 

§  73.  Deposit  of  Will  in  County  Court. 

74.  Duties  of  Other  Person  to  Deliver  Will. 

75.  Proceedings  to  Bring  a  Will  into  Court. 

76.  Liability  for  Failure  to  Deliver  Will. 

CHAPTER  VIII. 

PROBATE  OF  WILLS. 

I     77.     Definition  of  the  Term  "Probate"  as  Applied  to  Wills. 

78.  Statute  of  Limitations. 

79.  Petition  for  Probate  of  a  Will. 


VU1  TABLE    OF    CONTENTS. 

80.  Notice  of  Hearing. 

81.  Facts  Necessary  to  be  Proved  on  Probate  of  Will. 

82.  One  Witness  Only  Required  When  Will  not  Contested. 

83.  Testamentary  Character  of  Instrument  Proposed  as  a  Will. 

84.  Contestants  of  Wills. 

85.  Evidence  of  Mental  Capacity. 

86.  Expert    Evidence. 

87.  Undue  Influence — Definition. 

88.  Conditions  Constituting  Undue  Influence. 

89.  Undue  Influence  and  Mental  Capacity. 

90.  Unjust  Provisions  Evidence  of  Undue  Influence. 

91.  Undue  Influence  of  Person  Holding  Special  Relation  of  Trust. 

92.  Undue  Influence  of  Draftsman  of  Will. 

93.  Execution  of  Will  Obtained  by  Fraud. 

94.  Evidence  of  Undue  Influence  and  Fraud. 

95.  Will  of  Person  Under  Guardianship. 

96.  Declarations  of  Testator. 

97.  Fraud  and  Undue  Influence — By  Whom  Shown. 

98.  Effect  of  Will  Obtained  by  Fraud. 

99.  Invalid   Bequest    or   Devise. 

100.  Omitting  Reference  to  Children. 

101.  Probate  of  Foreign  Wills. 

102.  Probate  of  Nuncupative  Wills. 

103.  Probate  of  Wills  Executed  Outside  the  State  by  a  Resident 

Thereof. 

104.  Costs  in  Will  Contests. 

105.  Reducing  Testimony  on  Probate  of  Wills  to  Writing. 

106.  Order  Admitting  Will  to  Probate. 

107.  Certificate  of  Probate  of  Will. 


CHAPTER  IX. 

REVOCATION  OF  PROBATE. 

108.  Revocation  of  Probate — Definition. 

109.  Grounds  for  Revoking  Probate  of  Will. 

110.  Power  of  County  Court  to  Revoke  Probate  of  Wills. 

111.  Procedure   for    Revoking   Probate. 

112.  Facts   Necessary   to   be   Established. 

113.  Effect  of  Order  of  Revocation. 

114.  Revocation  Because  Testator  is  Living. 


TABLE    OF    CONTENTS.  IX 

CHAPTER  X. 

COLLECTION  AND  MANAGEMENT  OF  THE  ASSETS 
OF  THE  ESTATE  BEFORE  THE  APPOINTMENT 
OF  AN  EXECUTOR  OR  ADMINISTRATOR. 

§  115.  Special   Administrator — "When    Appointed. 

116.  Jurisdiction  of  Court  to  Issue  Letters. 

117.  Evidence — Xotice. 

118.  Bond  of  Special  Administrator. 

119.  Powers  and  Duties  of  Special  Administrator. 

120.  Accounting  by   Special   Administrator. 

121.  Discharge  of  Special  Administrator. 


CHAPTER  XI. 
LETTERS  TESTAMENTARY. 

§  122.  Executors — Administrators  "With  the  Will  Annexed, 

123.  To  Whom  Letters  may  Issue. 

124.  Eight  to  Act  as  Executor  not  Assignable. 

125.  Joint   Executors. 

126.  Grant  of  Letters  and  Bond. 

127.  Oath  of  Executor. 

128.  Bond  of  .Residuary  Legatee. 

129.  Appointment  of  Administrator  With  the  Will  Annexed. 

130.  Preferences. 

131.  Procedure. 

CHAPTER  XII. 

DETERMINATION  OF  HEIRSHIP  WITHOUT  AD- 
MINISTRATION. 

§  132.  When  Administration  may  be  Dispensed  With. 

133.  Procedure. 

134.  Hearing — Decree. 

135.  Determining  Right  of  Succession  Without  Administration. 

136.  Petition  for  Decree  Determining  Succession. 

137.  Citation — Hearing. 

138.  Decree  Determining  Succession, 


;  TABLE   OF   CONTENTS. 

CHAPTER  XIII. 

APPOINTMENT  OF  ADMINISTRATORS. 

139.  Administration — Definitions. 

140.  When  Administrator  Appointed — Resident  Estates. 

141.  Who  is  Capable  of  Administering  an  Estate. 

142.  Who  Entitled  to  the  Appointment. 

143.  Next  of  Kin. 

144.  Eight  of  Creditor  to  Administer. 

145.  Administration  of  Estates  of  Nonresidents. 

146.  Appointment  of  Administrator  When  Assets  Consist  of  Cause 

of  Action  for  Death  of  Decedent. 

147.  Petition  for  Appointment. 

148.  Notice  of  Hearing. 

149.  Hearing  on  Petition  for  Letters. 

150.  Hearing — Selection  of  Administrator. 

151.  Order  Granting  Letters. 

152.  Bond  of  Administrator. 

153.  Oath  of  Administrator. 

154.  Letters  of  Administration  cannot  be  Attacked  Collaterally. 


CHAPTER  XIV. 

REMOVAL  OP  EXECUTORS  AND  ADMINISTRATORS. 

§  155.  Ending  of  Authority  Pending  Administration. 

156.  Removal  of  Eevocation  of  Letters. 

157.  Personal  Representative  cannot  be  Removed  Except  for  Cause. 

158.  Removal  on  Account  of  Nonresidence. 

159.  Removal  for  Failure  to  Observe  Statutory  Requirements. 

160.  Removal  for  Mismanagement. 

161.  Removal  for  Incapability   and  Unsuitableness. 

162.  Removal  of  Administrator  by  Subsequent  Probate  of  Will. 

163.  Removal  of  Executrix  or  Administratrix  by  Marriage. 

164.  Removal  on  Account  of  Insufficiency  of  Bond. 

165.  Proceedings  to  Remove  Personal  Representatire. 

166.  Who  may  File  Petition. 

167.  Hearing  on  Charges. 

168.  Order  of  Removal. 


TABLE    OF    CONTENTS.  XI 

CHAPTER  XV. 

APPOINTMENT  OF  ADMINISTRATOR  DE  BONIS  NON. 

§  169.     Definition — When  Appointed. 

170.  Jurisdiction — Petition. 

171.  Notice — Hearing. 

CHAPTER  XVI. 

INVENTORY  AND  APPRAISEMENT. 

§  172.  First  Duty  of  Personal  Eepresentative. 

173.  What  Property  must  be  Inventoried. 

174.  Personalty  Generally. 

175.  Emblements. 

176.  Fixtures. 

177.  Personal  Property  not  in  Possession  of  Eepresentative. 

178.  Property  the  Title  to  Which  is  Questioned. 

179.  Keal  Estate. 

180.  What  Need  not  be  Inventoried. 

181.  Failure  of  Executor  or  Administrator  to  File  Inventory. 

182.  Appointment  of  Appraisers. 

183.  Duties  of  Appraisers. 

184.  Inventory  of  Administrator  De  Bonis  Non. 

185.  Inventory  not  Conclusive. 

CHAPTER  XVII. 

ALLOWANCES  FOR  THE  SUPPORT  OF  THE  FAMILY. 

S  186.  Allowances  of  Specific  Articles. 

187.  Persons  Entitled  to  Allowance. 

188.  Nature  and  Object  of  the  Allowance, 

189.  How  Allowance  Barred. 

190.  Amount  of  Allowance. 

191.  Payment  of  Allowance. 

192.  Allowance — How  Obtained. 


XU  TABLE    OF    CONTENTS. 

CHAPTER  XVIII. 

COLLECTION  OF  ASSETS. 

§  193.     Eight  of  Executor  or  Administrator  to  Possession  of  Personal 
Property. 

194.  Eight  to  Assets  Before  Grant  of  Letters. 

195.  Executor  De  Son  Tort. 

196.  Limitation  on  Authority  of  Executor  or  Administrator  Over 

Assets. 

197.  Proceedings  to  Eequire  Disclosure  of  Assets. 

198.  Examination — Nature  of  Proceedings. 

199.  Possession  of  Eeal  Estate. 

200.  Eecovery  of  Eeal  Estate  by  Heir  or  Devisee. 

201.  Survival  of  Causes  of  Action. 

202.  Eevivor  of  Actions  on  Death  of  Plaintiff. 

203.  Actions  for  Causing  Death  of  Decedent. 

204.  Mortgages. 

205.  Suits — How  Brought. 

206.  Degree  of  Diligence  Eequired  of  Executor  or  Administrator  in 

Eeducing  Assets  to  Possession. 

207.  Special  Proceedings  to  Becover  Personalty. 

208.  Compromising  Debts  With  Leave  of  the  Court. 

209.  Eight  to  Compromise  Debts  Without  Leave  of  the  Court. 

210.  Eight  to  Submit  Claim  to  Arbitration. 

211.  Eight  to  Adjust  or  Compromise  Eeal  Estate  Contracts. 

212.  Actions  to  Eecover  Assets  Transferred  in  Fraud  of  Creditors. 

213.  Suit  by  Creditor. 

214.  Indemnity  Bond. 

215.  Nature  of  the  Action. 

216.  Eight  of  Heir  or  Legatee  to  Collect  Assets. 

217.  Debt  of  Executor  or  Administrator  to  the  Estate. 


CHAPTER  XIX. 

MANAGEMENT  OF  ESTATES. 

§  218.  General  Powers  of  Executor  or  Administrator. 

219.  Actions  Against  the  Estate. 

220.  Management  of  Eeal  Estate. 

221.  Power  of  Executor  to  Sell  Beal  Estate. 

222.  Sales  by  Administrator  With  the  Will  Annexed. 


TABLE   OF   CONTENTS.  Xlll 

223.  Sales  of  Personal  Property. 

224.  Executor  or  Administrator  not  to  be  a  Purchaser. 

225.  Caveat  Emptor. 

•^226.     Eight  of  Creditor,  Heir  or  Legatee  to  Follow  Assets. 
227.     Assets  of  Estate  Held  by  Heirs  or  Legatees. 
22S.     Contiibution  by  Heirs  or  Devisees  for  Payment  of  Debts. 
228a.  Eecovery  of  Property  from  Distributees. 
228b.  Liability  of  Heirs  for  Debts. 

229.  Investment  of  Assets. 

230.  Liability  of  Executor  or  Administrator  on  His  Own  Contracts. 

231.  Contracts  of  Decedent. 

232.  Personal  Representative  not  Authorized  to  Carry  on  Decedent's 

Business. 

233.  Liability  for  Carrying  on  Decedent's  Business. 

234.  Devastavit.  Definition. 

235.  Liability  for  a  Devastavit. 

236.  Eights  in  Regard  to  Negotiable  Instruments. 

CHAPTER  XX. 

PARTNERSHIP. 

§  237.     Dissolution    of   Partnership    by   Death — Rights    of    Surviving 
Partner. 

238.  Duty  of  Surviving  Partner. 
238a.  Administrator  of  a  Partnership. 

238b.  Power  of  Administrator  of  a  Partnership. 

239.  Settlement   Between   Personal  Bepreaentative   and   Surviving 

Partner. 

240.  Partnership  Real  Estate. 

241.  Settlement  With  Special  Administrator. 

242.  Account  of  Special  Administrator. 

243.  Sale  of  Interest  of  Estate  in  Partnership  Property. 

244.  Notice — Hearing. 

CHAPTER  XXL 

MORTGAGING  REAL  ESTATE  BY  EXECUTORS  AND 
ADMINISTRATORS. 

§  245.     Authority   of    Executor   or    Administrator  to    Mortgage   Real 

Estate. 
246.     Jurisdiction   of  County  Court  to   Grant  License  to  Mortgage. 


XIV  TABLE   OF   CONTENTS. 

247.  Appointment  of  Special  Administrator  to  Execute  Mortgage. 

248.  Hearing  on  Petition  and  Application — License. 

249.  Mortgages  and  Notes. 

250.  Discharge  of  Special  Administrator. 


CHAPTER  XXII. 

ENFORCEMENT   OF   DECEDENT'S    CONTRACT   FOR 
SALE  OF  REAL  ESTATE. 

§  251.  Executor  or  Administrator  has  No  Inherent  Authority  to  Exe- 
cute Deed  to  Real  Estate. 

252.  Enforcement  of  Decedent's  Eeal  Estate  Contracts. 

253.  Petition  for  Enforcement  of  Contract  to  Convey  Keal  Estate. 

254.  Notice  of  Hearing. 

255.  Hearing  on  the  Petition. 

256.  Costs. 

257.  Specific  Performance  of  Contracts  to  Convey  Eealty. 

258.  Contracts  Covering  Homesteads. 


CHAPTER  XXIII. 

FOREIGN  AND  ANCILLARY  ADMINISTRATION. 

§  259.    Limitation   on   Powers  of  Executor  or  Administrator  at  Com- 
mon Law. 

260.  Powers    of    Foreign    Executor    or    Administrator    Within    this 

State. 

261.  Limitation  on   Powers  of  Foreign  Representatives. 

262.  Rights  of  Nebraska  Administrator  in  Other  States. 

263.  Jurisdiction  of  the  Court  to  Appoint  Ancillary  Administrator. 
264".     Purposes  for  Which  Appointment  Proper. 

265.  Procedure  for  Appointment. 

266.  Hearing — Order  for  Appointment. 

267.  General  Rules  Governing  Ancillary  Administration. 

268.  General  Powers  and  Duties  of  Ancillary  Administrators. 

269.  Allowance  and  Payment  of  Claim. 

270.  Accounting  by  Ancillary  Administrators. 

271.  Disposition  of  Surplus  After  Paying  Debts. 


TABLE    OP    CONTENTS.  XV 

CHAPTER  XXIV. 

ALLOWING  CLAIMS  AGAINST   THE  ESTATE. 

§  272.     Creditor's  Interest  in  the  Estate  of  a  Decedent. 

273.  Power  of  County  Judge  to  Allow  Claims. 
273a.  Presentation  of  Claims  to  Eepresentative. 
273b.  Duty  of  Eepresentative. 

273c.  Special  Proceedings  Against  Estate. 

273d.  Suit  Against  Eepresentative. 

274.  Time  and  Place  for  Hearing  Claims. 

275.  Notice  to  Creditors. 

276.  Claims  Which  Need  not  be  Filed. 

277.  Claims  Which  Need  not  be  Filed— Concluded. 

278.  Property  Held  by  a  Trustee. 

279.  Statute  of  Limitations. 

280.  The  Statutes  of  Nonclaim. 

281.  The  Two  Years'  Limitation. 

282.  Proving  Claims. 

283.  Proving  Claims — Concluded. 

284.  Funeral  Expenses. 

285.  Funeral  Expenses — Concluded. 

286.  Claims  Against  an  Estate — Accrued  Demands. 

287.  Claims  Becoming  Due  After  Death. 

288.  Express  Contracts  to  Pay  for  Services  Eendered. 

289.  Implied  Contracts  to  Pay  for  Services  Eendered. 

290.  Implied  Contract  to  Pay  for  Services  Eendered — Concluded. 

291.  Conversations  and  Transactions  With  Decedent. 

292.  Competency  of  Adverse  Party. 

293.  Adverse  Party. 

294.  Waiver  of  Objections. 

295.  Declarations   and   Admissions  to  Third  Party  in  Presence   of 

Claimant. 

296.  Claims  for  Breach  of  Covenants. 

297.  Claims  Due  Nonresidents. 

298.  Joint  Claims. 

299.  Executor's  or  Administrator's  Claims. 

300.  Contingent  Claims. 

301.  Contingent  Claims  Becoming  Absolute. 

302.  Contract  to  Bequeath  or  Devise  Property. 

303.  Consideration  of  Contract. 

304.  Belief  Granted. 


XVI  TABLE    OF    CONTENTS. 

305.  Writings  of  Deceased  Persons  as  Evidence. 

306.  Extending  Time  for  Presentation  of  Claims. 

307.  Order  Extending  Time  for  Filing  Claims. 

308.  Order  Allowing  Claims. 


CHAPTER  XXV. 

SALES  OF  REAL  ESTATE  FOR  PAYMENT  OF  DEBTS. 

§  309.  Creditor's  Lien  on  Realty. 

310.  Duty  of  Executor  or  Administrator  to  Procure  License. 

311.  Nature  of  Proceedings. 

312.  When  and  Where  Petition  Filed. 

313.  Necessary  Parties  to  Proceeding. 

314.  Necessary   Allegations   of   Petition. 

315.  Description    of   Lands. 

316.  Order  to   Show   Cause. 

317.  Service  of  Order  to  Show  Cause. 

318.  Payment  of  Debts  to  Prevent  Sale. 

319.  Hearing   on   the    Application. 

320.  Hearing — Insufficiency  of  Personal  Property. 

321.  Hearing — Debts  and  Expenses  of  Administration. 

322.  Hearing — Lands  Subject  to  Sale. 

323.  Order  of  Sale  or  License. 

324.  Additional  Bond. 

325.  Notice  of  Sale. 

326.  Sale  Subject  to  Liens. 

327.  Oath  of  Executor  or  Administrator. 

328.  Sale. 

329.  Adjournment   of  Sale. 

330.  Executor  or  Administrator  not  to  be  a  Purchaser. 

331.  Confirmation  of  Sale. 

332.  Confirmation  of  Sale — Concluded. 

333.  Sale  of  Contract  Interest  in  Land. 

334.  Death   of  Executor  or   Administrator  Pending  Proceedings. 

335.  Sales  by  Foreign  Executors  or  Administrators. 

336.  Taxation  of  Costs. 

337.  Executor's  or  Administrator's  Deed. 

338.  Title  of  Purchaser. 

339.  Sale  of  Property  in  Which  a  Homestead  is  Included. 


TABLE    OF    CONTENTS.  XVU 

CHAPTER  XXVI. 

COLLATERAL   ATTACK   ON   PERSONAL   REPRE- 
SENTATIVE'S SALES. 

§  340.  When  Action  may  be  Brought. 

341.  Void  and   Irregular  Sales. 

342.  Attacking  the  License. 

343.  Attacking  the  License — The  Petition. 

344.  Attacking  the  License — Order  to  Show  Cause. 

345.  Jurisdictional   Irregularities. 

346.  Failure  to  Give  Bond. 

347.  Failure  to  Take  Oath. 

348.  Notice  of  Time  and  Place  of  Sale. 

349.  Compliance  With  the  Order  of  Sale. 

350.  Purchase  by  Disqualified  Party. 

351.  Fraud. 

352.  Eights  of  Purchaser  at  Void  Sale. 


CHAPTER  XXVII. 

PAYMENT  OF  DEBTS  AND  EXPENSES. 

5  353.  Time  Within  Which  Debts  are  Payable. 

354.  Time  Granted  an  Administrator  De  Bonis  Non  to  Pay  Debts. 

355.  Assets  Liable  for  the  Payment  of  Debts. 

356.  Order  of  Application  of  Personalty  to  Payment  of  Debts. 

357.  Direction  in  Will  for  Payment  of  Debts. 

358.  Debts  Charged  on  the  Beal  Estate. 

359.  Assets    not    Liable    for    Debts. 

360.  Adjustment    of   Liens   on   Realty. 

361.  Liability  of  Heirs,  Legatees  and  Devisees  for  Payment  of  Debts. 

362.  Actions  Against  Heirs,  Devisees  and  Legatees. 

363.  Actions  Against  Executors  and  Administrators. 

364.  Executor  or  Administrator  not  Subject  to  Garnishment. 

365.  Classification  of  Claims  for  Payment  of  Debts. 

366.  Interest  on  Claims. 

367.  Order  for  Payment  of  Claims. 

368.  Payment,  How  Made. 

369.  Liability  of  Executor  or  Administrator  to  Creditors. 


XV1U  TABLE    OF    CONTENTS. 

CHAPTER  XXVIII. 

PAYMENT  OF  LEGACIES. 

|  370.  Personalty  the  Primary  Fund  for  Payment  of  Legacies. 

371.  Charges  on  Real  Estate  for  Payment  of  Legacies. 

372.  Sales  of  Real  Estate  for  Payment  of  Legacies. 

373.  Payment  of  Legacies  to  Debtors  and  Creditors. 

374.  Vesting  of  Legacies. 

375.  Lapsed  Legacies. 

376.  Lapsed  and  Void  Legacies. 

377.  Abatement  of  Legacies. 

378.  Ademption  of  Legacies. 

CHAPTER  XXIX. 

GIFTS  CAUSA  MOHTIS  AND  ADVANCEMENTS. 

§  379.  Gifts  Causa  Mortis — Defined. 

380.  What  Property  Subject  to  Gift  Causa  Mortis. 

381.  Effect  of  Gift. 

382.  How  Validity  of  Gift  Determined. 

383.  Advancement — Defined. 

384.  Changing  Character  of  Payment. 

385.  Evidence  Necessary  to  Prove  Advancement. 

386.  Testate  Estates. 

387.  Value  of  Advancement. 

388.  Advancements  and  Distribution. 

CHAPTER  XXIX-A. 

DOWER  AND  CURTESY. 

§  388a.  Definitions. 

388b.  Dower  in  Mortgaged  Property. 

388c.  Dower  of  Aliens  and  Nonresidents. 

388d.  Property  Subject  to  Dower. 

388e.  Requisites  of  Dower  and  Curtesy. 

.388f.  Dower  and  Curtesy — How  Barred. 

388g.  Election  Between  Jointure  and  Dower  and  Devise  and  Dower  or 
Curtesy. 


TABLE   OF   CONTENTS.  XIX 

388h.  Assignment  of  Dower. 

3881.  Assignment  of  Dower  by  County  Court. 

388j.  Assignment  of  Dower  by  Circuit  Court. 

388k.  Dower  in  Lands  that  have  Enhanced  in  Value. 

3881.  Dower  in  Lands  that  have  Depreciated  in   Value. 

388m.  Dower  in  Lands  not  Capable  of  Division. 

388n.  Damages  for  Withholding  Dower. 

388o.  Incidents  of  Dower. 

388p.  Dower  Eecoyered  by  Default  or  Collusion. 

CHAPTER  XXX. 

ASSIGNMENT  OF  HOMESTEAD. 

389.  Descent  of  Homestead. 

390.  How  Homestead  of  Surviving  Spouse  Barred. 

391.  Rights  of  Survivor  in  Homestead. 

392.  Assignment  of  Homestead  by  Cfeunty  Court. 

393.  Selection  and  Setting  Out  Homestead  from  Larger  Tract. 

394.  Assignment  of  Homestead  by  District  Court. 

395.  The  Remainder  in  the  Homestead  Property. 

CHAPTER  XXXI. 

INHERITANCE  TAX. 

396.  Nature  of  the  Tax. 

397.  Tax  on  Inheritance,  Devises  and  Requests. 

398.  Property  Transferred  in  Contemplation  of  Death. 

399.  Property  Liable  to  Taxation. 

400.  Jurisdiction  of  County  Court  Over  Inheritance  Tar. 

401.  Duties  of  Appraisers. 

402.  Duties  of  Appraisers — Concluded. 

403.  Assessment  of  the  Tax. 

404.  Appeals. 

405.  When  Inheritance  Tax  Due. 

406.  Payment    of    Inheritance    Tax   by    Executor,    Administrator    or 

Trustee. 

407.  Refunding  Excess  or  Erroneous  Payment. 

408.  Action  for  Recovery  of  Tax. 

409.  Inheritance  Tax  Records. 
409a.  Life  Expectancy  Tables. 


XX  TABLE    OF   CONTENTS. 

CHAPTER  XXXII. 

ACCOUNTING. 

§  410.  Duty  of  Executor  or  Administrator  to  Bender  an  Account. 

411.  When  Accounting  Eequired. 

412.  Proceedings  for  an  Accounting. 

413.  Annual  or  Interlocutory  Accounts. 

414.  Debtor  Side  of  Account — General  Charges. 

415.  Debtor  Side  of  Account — Interest. 

416.  Debtor  Side  of  Account — Lands  Purchased. 

417.  Credit  Side  of  Account — General  Charges. 

418.  Costs  and  Expenses  of  Administration. 

419.  Costs  and  Expenses  of  Administration — Concluded. 

420.  Fees  of  Executor  or  Administrator. 

421.  Fees  and  Special  Compensation. 

422.  Notice  of  Hearing  on  Administration  Account. 

423.  Hearing  on  the  Account. 

424.  Hearing  on  the  Account — Concluded. 

425.  Order  Allowing  Final  Account. 

426.  Coexecutors  and  Coadministrators. 

427.  Equitable  Action  to  Eecover  Assets. 

428.  Accounting  by  Former  Executor  or  Administrator  With  Admin- 

istrator  De  Bonis  Non. 


CHAPTER  XXXIII. 

DIVISION  OF -THE  ESTATE. 

{  429.  Descent  of  Eeal  Estate  to  Surviving  Spouse. 

430.  Barring  Inheritances. 

431.  Election  Between  Will  and  Distributive  Share. 

432.  Election  on  Behalf  of  Survivor. 

433.  Effect  of  Bejection  of  Will. 

434.  Descent  of  Eeal  Estate  to  Heirs. 

434a.  Descent  of  Eeal  Estate  to  Heirs — Concluded. 

435.  Descent  of  Eeal  Estate  to  Heirs — Concluded. 

436.  Kindred  of  the  Half  Blood. 

437.  Descent  of  Estate  of  Illegitimate. 

438.  Eight  of  Illegitimate  to  Inherit. 

439.  Inheritance  by  Adopted  Children, 


TABLE    OF    CONTENTS.  XXI 

440.  Posthumous  Children. 

441.  Share  of  Child  not  Provided  for  Toy  WiEL 

442.  Eights  of  Nonresident  Aliens. 

443.  Distribution  of  Personalty. 

444.  Exceptions  to  Eight  to  Inherit. 

445.  Escheats. 

446.  Personalty  Distributed  as  Eealty. 

447.  Decree  of  Distribution. 

448.  Petition  for  Decree. 

449.  Hearing  on  Application  for  Distribution. 

450.  Eequirements   of  Decree. 

450a.  Special  Proceedings  for  Determining  Heirship. 
450b.  Citation  and  Service. 
450c.  Hearing  on  the  Petition. 
450d.  Decree  Designating  Heir. 

451.  Nature  of  Decree. 

452.  Discharge  of  Executor  or  Administrator. 


CHAPTER  XXXIV. 

ENFORCEMENT  OF  PROBATE  BONDS. 

453.  Purpose  for  Which  Bond  is  Given. 

454.  Failure  of  Bond  to  Comply  With  Statute. 

455.  Common-law  Bond. 

456.  Cumulative  Bond. 

457.  Liability  of  Sureties  of  Coexecutors  and  Coadministrators. 

458.  Who  can  Bring  Suit  on  Probate  Bond. 

459.  Proceedings  Necessary  in  Order  to  Sustain  Action  on  Probate 

Bond. 

460.  Fixing  Liability  of  Bondsmen. 

461.  What  Constitutes  a  Breach  of  the  Bond. 

462.  What  Constitutes  a  Breach  of  the  Bond — Concluded. 

463.  Losses  not  Covered  by  Bond. 

464.  Eesiduary  Legatee's  Bond. 

465.  Suit  by  Administrator  De  Bonis  Non. 

466.  Authority  to  Bring  Suit  on  Bond. 

467.  Time  Within  Which  Action  may  be  Brought. 

468.  Liability  of  Sureties. 

469.  Liability  in  Eegard  to  Eeal  Estate. 

470.  Liability  for  Proceeds  of  Sales  of  Eeal  Estate  Under  Order 

of  Court. 


XX11  TABLE   OF   CONTENTS. 

471.  Action  on  the  Bond. 

472.  Action,  When  Barred. 


CHAPTER  XXXV. 

APPEALS  AND  PROCEEDINGS  IN  ERROR. 

§  473.  Review  of  Judgments  and  Decrees. 

474.  Parties  to  Appeal  or  Proceedings  in  Error. 

475.  Appealable  Orders. 

476.  Appeals  by  Personal  Representatives. 

477.  Appeals  by  Other  Parties. 

478.  Appeals  by  Other  Parties  from  Decrees  Adverse  to  the  Estate. 

479.  Transcript. 

480.  Administration  Pending  Appeals. 

481.  Proceedings  in  Appellate  Court. 

482.  Failure  to  Perfect  Appeals. 

483.  Order  or  Decree  of  District  Court. 

484.  Writs  of  Error. 

485.  Procedure. 

486.  Supersedeas  Bond. 

487.  Summons  in  Error. 

488.  Hearing  in  District  Court. 

489.  Judgment  of  District  Court  in  Error  Proceedings. 

CHAPTER  XXXVI. 

APPOINTMENT  AND  REMOVAL  OF  GUARDIANS. 

§  490.  Guardians — Definition. 

491.  Powers,  Rights  and  Duties  of  Natural  Guardians. 

492.  Testamentary  Guardians. 

493.  Appointment  of  Guardian  of  a  Minor. 

494.  Guardians  of  Minors  Who  have  No  Estate. 

495.  To  Whom  Letters  may  Issue. 

496.  Procedure  for  Appointment  of  Guardian  of  a  Minor. 

497.  Hearing. 

498.  Appointment  of  Guardian  for  Insane  or  Incompetent  Person. 

499.  Temporary  Guardian. 

500.  Hearing. 

501.  Guardian  for  Spendthrift. 


TABLE    OF    CONTENTS.  XX111 

502.  Contracts  of  Spendthrift  Pending  Appointment  of  Guardian. 

503.  Nature  of  Order  Appointing  or  Refusing  to  Appoint  a  Guard- 

ian. 

504.  Guardian's  Bonds. 

505.  Joint  Guardians. 

506.  Guardian  of  Nonresidents. 

507.  Removal  of  Guardians. 

508.  Notice  to  Guardian. 

509.  Appointment  of  Successor. 


CHAPTER  XXXVII. 

POWERS  AND  DUTIES  OF  GUARDIANS. 

510.  Inventory  and  Appraisement. 

511.  Custody  of  Person  of  Ward. 

512.  Support  of  Minor  Ward. 

513.  Support  of  Incompetent  or  Spendthrift. 

514.  Labor  and  Services  of  Ward. 

515.  Collection  of  Assets. 

516.  Action  Against  Ward. 

517.  Contracts  of  Guardians. 

518.  Payments  of  Debts  of  Ward. 

519.  Powers  and  Duties  in  Regard  to  Real  Estate. 

520.  Investment  and  Management  of  Personal  Estate. 

521.  Investment  and  Management  of  Personal  Estate — Concluded. 

522.  Liability  of  Guardian  for  Negligence. 

523.  Liability  for  Ill-treatment  of  Ward. 

524.  Rights  of  Foreign  Guardian  in  This  State. 

525.  Additional  or  Cumulative  Bond. 


CHAPTER  XXXVIII. 

GUARDIANS'  SALES  AND  MORTGAGES  OF  LANDS. 

5  526.  Power  of  Guardian  to  Sell  Real  Estate. 

527.  Procedure  for  Sale. 

528.  What  Interest  in  Lands  may  be  Sold. 

529.  Petition-. 

530.  Order  to  Show  Cause — Service. 

531.  Hearing  on  the  Application. 


XXIV  TABLE   OF    CONTENTS. 

532.  License. 

533.  Bond  and  Oath. 

534.  The  Sale. 

535.  Confirmation  of  Guardian's  Sales. 

536.  Sales  by  Foreign  Guardians. 

537.  The  Rule  of  Caveat  Emptor. 

538.  Division  of  the  Proceeds. 

539.  Action  for  Recovery  of  Lands  Sold  by  Guardians. 

540.  Estoppel  of  Former  Ward. 

541.  Action  by  Party  Claiming  Adversely  to  Ward. 

542.  Collateral  Attack  on  the  License. 

543.  Collateral  Attack,  Bond  and  Oath. 

544.  Collateral  Attack — Notice  of  Sale  and  Sale. 

545.  Mortgage  on  Minor's  Lands — Application. 

546.  Proceedings  on  the  Application. 

547.  Sales  of  the  Interest  of  Insane  Spouse  in  Real  Estate. 

548.  Hearing  and  Bond. 

549.  Sale  and  Confirmation. 


CHAPTER  XXXIX. 

ACCOUNTS  AND  SETTLEMENTS  OF  GUARDIANS. 

550.  Annual  Account  of  Guardian. 

551.  Guardian's  Account — Debit  Side. 

552.  Guardian's  Accounts — Credits. 

553.  Power  to  Compel  Interlocutory  Accounting. 

554.  Discharge   of   Guardian. 

555.  Settlement  Out  of  Court. 

556.  Action  to  Set  Aside  Settlement. 

557.  Action  by  Ward  for  Property  Fraudulently  Transferred. 

558.  Final  Accounting  in  County  Clerk. 

559.  Hearing  on  Guardian's  Account. 

560.  Order  Allowing  Final  Account  of  Guardian. 

561.  Liability  of  Sureties  on  Guardian's  Bond. 

562.  Release  of  Sureties. 

563.  Action   on   Guardian's  Bond. 
563a.  Appeals  in  Guardianship  Matters. 


TABLE    OF    CONTENTS.  XXV 

CHAPTER  XL. 

ADOPTION  OF  CHILDREN, 


§  5G4.  Adoption — Definition. 

565.  Who  may  Adopt  a  Child. 

566.  Consent  of  Parents  or  Guardians. 

567.  Proceedings  for  Adoption. 

568.  Notice  of  Hearing. 

569.  Hearing  on  the  Petition. 

570.  Decree   of   Adoption. 


APPENDIX. 

(Pages  963  to  966.) 

TABLE  OF  CASES. 

(Pages  967  to  1056.) 

INDEX. 

(Pages  1057  to  1125.) 


PKOBATE  AND  ADMINISTRATION, 


CHAPTER  I. 

ORGANIZATION,    POWERS   AND    JURISDICTION    OF 
THE  COUNTY  COURT. 

§     1.  Establishment  of  Courts  of  Probate  Jurisdiction. 

2.  Bond  and  Oath  of  County  Judge. 

3.  Liability  of  His  Sureties. 

4.  Vacancies. 

5.  How  Vacancies  Filled. 

6.  Disqualification  of  County  Judge. 

7.  Effect  of  Disqualification. 

8.  Appointment  of  Acting  County  Judge. 

9.  Jurisdiction  of  County  Court — Statutory. 

10.  Equitable  Xature  of  County  Court  Proceedings. 

11.  Implied  or  Inherent  Jurisdiction. 

12.  Clerk  of  County  Court. 

13.  County  Court  Practice  and  Procedure. 

14.  Process  and  Service  Thereof. 

15.  Attorneys. 

16.  Guardians  ad  Litem. 

17.  Kecords   of   County  Court. 

18.  Certifying  Records. 

19.  Probate  Books  as  Public  Records. 

20.  County  Judges'  Fees. 

21.  Sheriffs'  Fees. 

22.  Printers'  Fees. 

23.  "Witnesses'  and  Appraisers'  Fees. 

24.  Original  Jurisdiction  of  District  Court  Over  Probate  Matters. 

§  1.     Establishment  of  courts  of  probate  jurisdiction. 

The   literal   definition   of   the   word   "probate"   is 

formal  legal   proof   used,   especially   in   reference   to 

•wills.1     Its  meaning,  however,  has  become  broadened 

1  Cyclopedic  Law  Diet.;  Bouvier's  Law  Diet.;  Webster's  Diet. 
1— Pro.  Ad. 


§  1  PROBATE   AND   ADMINISTRATION.  [Chap.  1 

by  usage,  until  even  in  statutes  and  judicial  opinions 
it  includes  the  appointment  of  administrators  and  pro- 
ceedings generally  in  a  court  of  first  instance  for  the 
distribution  of  the  property  of  a  decedent  to  the  par- 
ties such  court  shall  find  entitled  to  the  same. 

At  the  first  session  of  the  territorial  legislature  laws 
were  passed  establishing  a  probate  court  with  original 
plenary  jurisdiction,  within  the  limits  of  the  county. 
over  all  matters  pertaining  to  the  settlement  of  the  es- 
tates of  decedents,  including  sales  of  real  estate  for  the 
purpose  of  paying  debts  and  expenses  of  administra- 
tion, and  guardianship  matters.2  With  the  adoption 
of  the  constitution  of  1875  the  old  probate  court  ceased 
to  exist,  and  a  county  court  vested  with  full  probate 
and  guardianship  jurisdiction  in  each  organized  county 
in  the  state  took  its  place.3  It  also  possesses  an  ex- 
tensive jurisdiction  over  civil  and  criminal  cases. 

In  the  exercise  of  its  jurisdiction  over  probate  and 
guardianship  matters  it  is  a  court  of  record,  whose 
judgments  and  recitals  are  entitled  to  the  same  pre 
sumptions  as  those  of  a  court  of  general  jurisdiction.4 
All  of  its  sessions  are  held  at  the  county  seat.  It  is 
deemed  always  open,  and  any  cause,  matter  or  proceed- 
ing may  be  proceeded  with  therein  at  any  time  after 
the  giving  of  notice  or  the  service  of  process  in  the 
mode  prescribed  by  law,5  but  for  the  purpose  of  cor- 

2  Gen.  Sess.  Laws,  vol.  1,  p.  176. 

8  Const.,  art.  18,  §  15;  Martin  v.  Grover,  9  Neb.  265,  2  N.  W.  354. 

4  Beer  v.  Plant,  1  Neb.  Unof.  372,  96  N.  W.  348;  Scott  v.  Flowers, 
61  Neb.  620,  85  N.  W.  857;  Genan  v.  Roderick,  4  Neb.  Unof.  436,  94 
N.  W.  523;  Kolterman  v.  Chilvers,  82  Neb.  216,  117  N.  W.  405. 

5  Rev.  Stats.,  e.  16,  §  77,  [1204]. 

(2) 


Chap.  1]  THE  COUXTT  COUBT.  §  2 

reeling  and  modifying  its  decrees,  it  is  considered  as 
holding  four  terms  of  three  months  each  per  year.6 

It  is  presided  over  by  one  judge,  who  is  elected  by 
the  duly  qualified  voters  of  his  county,  at  the  general 
election  held  on  the  first  Tuesday  in  November  of  each 
even-numbered  year,  and  holds  his  office  for  two  years 
and  until  his  successor  is  elected  and  qualified.1  Al- 
though many  complicated  legal  questions  come  before 
this  court,  the  legislature  has  not  seen  fit  to  demand 
any  special  qualifications  of  the  judge  who  presides 
over  it,  and  any  person  eligible  to  a  county  office  may 
be  chosen  to  fill  it. 

In  Oregon,  like  powers  are  vested  in  a  county  court 
of  each  county,  which  in  the  exercise  of  the  same  is 
also  a  court  of  record,  and  of  general  and  superior 
powers.8  It  holds  regular  terms  on  the  first  Monday 
of  each  month,9  and  is  deemed  always  open  for  the 
transaction  of  such  probate  and  guardianship  matters 
as  may  be  had  without  the  presence  of  or  notice  to 
another.10  It  is  presided  over  by  one  judge  elected 
by  the  voters  of  his  county  for  a  term  of  four  years,11 
and,  as  in  Nebraska,  it  is  not  necessary  that  he  be  a 
lawyer. 

§  2.     Bond  and  oath  of  county  judge. 

Before  entering  upon  the  duties  of  his  office,  the 
county  judge  is  required  to  give  a  bond  conditioned 

6  Civ.  Code,  §  656. 

T  Const.,  art.  8,  §  20;  Bev.  Stats.,  e.  20,  [1954]. 
8  Const.,  art.  7,  p.  1;  Bussell  v.  Lewis,  3  Or.  389;  Tustin  T.  Gaunt, 
4  Or.  305;  Monastes  v.  Catlin,  6  Or.  119. 
»  Laws  1913.  p.  467. 

10  L.  O.  L..  §§  936.  946,  947. 

11  Const.,  art.  8,  511. 

(3) 


§  2  PROBATE  AND  ADMINISTRATION.  [Chap.  1 

upon  the  faithful  discharge  of  all  the  duties  required 
of  him  by  law,  for  the  use  of  any  person  injured  by  a 
breach  of  the  same.  He  is  also  required  to  take  the 
constitutional  oath  of  office,  which  must  be  indorsed 
upon  his  bond.12 

The  bond  must  be  executed  by  at  least  two  sufficient 
sureties,  freeholders  of  the  county,  or  by  a  surety  com- 
pany authorized  to  do  business  in  the  state,13  and  in  a 
penal  sum  as  follows:  In  counties  having  a  population 
of  less  than  six  thousand,  five  thousand  dollars;  in 
counties  having  a  population  of  over  six  thousand  and 
less  than  twenty  thousand,  ten  thousand  dollars,  and 
in  counties  of  over  twenty  thousand  population,  fifty 
thousand  dollars;  and  no  person  can  become  surety  for 
the  same  officer  for  more  than  two  successive  terms.14 

It  must  be  approved,  both  as  to  form  and  sufficiency 
of  sureties,  by  the  county  board,  and  filed  and  recorded 
in  the  office  of  the  county  clerk,  with  a  certificate  of 
approval  indorsed  thereon,  on  or  before  the  first  Thurs- 
day after  the  first  Tuesday  in  January  next  succeeding 
the  election,  that  being  the  date  on  which  the  newly 
elected  officer  enters  upon  his  duties.15 

A  county  judge  re-elected  or  reappointed  to  that 
office  is  upon  the  same  footing  as  one  for  the  first  time 
elected, — he  must  qualify  by  taking  the  constitutional 
oath,  giving  bond  and  rendering  an  account  of  all  pub- 
lic funds  in  his  possession,  and,  should  he  be  holding 
over  by  reason  of  a  failure  to  elect  or  appoint  his  suc- 

12  Const.,  art.  1,  §  8;  Duffy  v.  State,  60  Neb.  812,  80  N.  W.  264; 
Rev.  Stats.,  c.  58,  §  177,  [5707]. 

as  Rev.  Stats.,  c.  58,  §185,  [5715]. 

14  Rev.  Stats.,  c.  58,  §§  185,  1&4,   [5715],   [5724]. 

15  Rev.  Stats.,  c.  58,  §§  194,   187,  181,    [5724],    [5717],    [5701]. 

(4) 


Chap.  1]  THE   COUNTY   COURT.  §  3 

cessor,  or  the  failure  of  such  elected  or  appointed  suc- 
cessor to  qualify,  he  must  qualify  anew  within  ten  days 
from  the  date  on  which  his  successor  should  have 
qualified.16 

The  failure  of  the  officer-elect  to  qualify  within  the 
time  limited  by  law  creates  a  vacancy,  ipso  facto.  The 
provision  of  the  statute  is  self-acting,  and  unless  the 
person  elected  files  his  bond  within  the  time  required, 
and  takes  the  oath,  he  loses  all  right  to  the  office,  and 
the  vacancy  can  be  filled  without  any  previous  judicial 
determination  of  the  fact.17 

Form  No.  1. 
OATH  OF  COUNTY  JUDGE. 

I  do  solemnly  swear  (or  affirm)  that  I  will  support  the  constitution 
of  the  United  States  and  the  constitution  of  the  state  of  Nebraska, 

and   will   faithfully  discharge  the   duties   of   county  judge   of  

county  according  to  the  best  of  my  ability,  and  that  at  the  election  to 
which  I  was  chosen  to  fill  said  office  I  have  not  improperly  influenced 
in  any  way  the  vote  of  any  elector,  nor  will  I  accept  or  receive, 
directly  or  indirectly,  any  money  or  other  valuable  thing  from  any 
company,  corporation  or  person,  or  any  promise  of  office,  for  any 
official  act  or  influence. 

Dated  this  day  of  ,  19 — . 

(Signed)     J.  K., 

County  Judge. 

§  3.    Liability  of  sureties. 

Sureties  upon  the  bond  of  a  county  judge  undertake 
to  answer  for  the  acts  of  their  principal  by  virtue  of 
his  office  only,  and  not  for  those  done  under  color  of 
office.  They  are  not  liable  for  assets  of  an  estate  which 

16  Eev.  Stats.,  c.  57,  §§  192,  193,  [5722],  [5723]. 

17  State  v.  Lansing,  46  Neb.  514,  64  N.  W.  1104;  Holt  County  r. 
Scott,  53  Neb.  176,  73  N.  W.  681. 

(5) 


§  3  PKOBATE  AND  ADMINISTRATION.  [Chap.  1 

came  into  the  possession  of  the  judge  before  letters  of 
administration  issued,  and  which  were  converted  by 
him.18  A  conversion  under  such  circumstances  and 
failure  to  deliver  the  property  to  the  administrator  is 
a  felony.19 

Form  No.  2. 
BOND  OF  COUNTY  JUDGE. 

Know  all  men  by  these  presents,  that  we,  J.  K.,  as  principal,  and 

C.  D.  and  E.  F.,  all  of  county,  Nebraska,  as  sureties,  are  held 

and  firmly  bound  unto  the  county  of  and  state  of  Nebraska  in 

the  penal  sum  of  ten  thousand  dollars,  for  which  payment  well  and 
truly  to  be  made  we  do  hereby  jointly  and  severally  bind  ourselves, 
our  heirs,  executors,  administrators,  and  assigns,  by  these  presents. 

Whereas,  on  the  day  of  ,  19 — ,  said  J.  K.  was  duly 

elected  to  the  office  of  county  judge  of  said  county  of ; 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if 
the  above  bond,  J.  K.,  shall  pay  over,  according  to  law  and  to  the 
persons  entitled  thereto,  all  moneys  which  shall  come  into  his  hands 
by  virtue  of  his  office,  and  shall  faithfully  discharge  all  the  duties 
required  of  him  by  law,  then  these  presents  to  be  null  and  void,  other- 
wise to  be  and  remain  in  full  force  and  effect. 

(Signed)  J.  K. 
C.  D. 
E.  F. 

The  foregoing  bond  approved  both  as  to  form  and  sufficiency  of 
sureties. 

(Signed)     L.  M., 
O.  P., 
B.  D., 
Commissioners. 

18  Stephens  v.  Hendee,  80  Neb.  754,  115  N.  W.  283. 

19  Hendee  T.  State,  80  Neb.  80,  113  N.  W.  1050, 

(6) 


Chap.  1]  THE  COUNTY  COUBT.  §  4 

Form  No.  3. 

JUSTIFICATION  OF  SURETY. 
State  of  Nebraska, 
•  County, — as. 

C.  D.,  of  said  county,  being  first  duly  sworn,  on  oath  says  that  he 
is  the  owner  of  the  following  described  real  estate  situated  in  said 

county  (describe  real  estate),  and  is  worth  the  sum  of  dollars 

over  and   above  all  legal  exemptions,  debts,  and  demands  of  every 
description. 

(Signed)     C.  D. 

Subscribed   in   my  presence,   and  sworn  to  before   me   this  

day  of  ,  19 — , 

(Signed)     V.  S., 
Justice  of  the  Peace. 

An  official  bond  is  not  required  of  a  county  judge  in 
Oregon.  He  qualifies  by  taking  an  oath  or  affirmation 
to  support  the  constitution  of  the  United  States  and 
the  constitution  of  the  state  of  Oregon,  and  also  an 
oath  of  office.20 

§  4.    Vacancies. 

The  office  of  county  judge  is  a  constitutional  one.21 
It  becomes  vacant  by  the  death  of  the  incumbent,  his 
removal  from  the  state,  resignation,  conviction  of  a 
felony,  impeachment  or  becoming  of  unsound  mind.22 
A  vacancy  also  occurs  when  the  duly  appointed  or 
elected  officer  neglects  to  have  his  official  bond  exe- 
cuted, approved  and  recorded  as  required  by  law. 
Such  neglect  vacates  the  office  ipso  facto,  and  the 
vacancy  is  filled  as  in  other  cases.23  A  vacancy  may 
exist  although  the  duties  pertaining  to  the  office  are 

20  Const.,  art.  15. 

21  Const.,  art.  6,  §  1. 

22  Const.,  art.  3,  §20;  L.  O.  L..  §3433;  Or.  Const.,  art.  8,  |  11. 

23  Rev.  Stats.,  c.  58,  §  111,  [5721];  State  v.  Lansing,  46  Neb.  514,  64 
N   W.  1104. 

(7) 


§  5  PROBATE  AND  ADMINISTRATION.  [Chap.  1 

being  discharged  by  a  person  temporarily  appointed 
by  proper  authority,  as  where  the  county  judge  re- 
moves permanently  from  the  county  while  a  person 
appointed  by  the  county  board  is  occupying  the  posi- 
tion. As  soon  as  such  temporary  absence  becomes  per- 
manent, and  the  judge  becomes  a  resident  of  another 
state  or  county  within  this  state,  the  authority  of  the 
appointee  ceases,  and  a  vacancy  occurs  which  must  be 
filled  in  the  manner  provided  by  the  statute.24 

A  county  judge  cannot  be  removed  from  office  for 
misconduct  or  maladministration,  except  by  impeach- 
ment in  the  same  manner  as  other  judicial  officers  and 
state  officers.25 

Vacancies  occurring  by  reason  of  the  judge  removing 
from  the  county,  or  failure  of  the  elected  or  appointed 
officer  to  qualify,  require  no  judicial  determination. 
Should  it  appear  prima  facie  that  events  have  occurred 
which  subject  the  office  to  a  judicial  declaration  of 
being  vacant,  the  authority  having  power  to  fill  it  may 
proceed  at  once  to  elect  or  appoint  a  successor  in  the 
manner  provided  by  law.26 

§  5.    How  vacancies  are  filled. 

If  the  vacancy  occurs  more  than  one  year  before  the 
next  regular  election,  the  unexpired  term  exceeding 
one  year,  it  must  be  filled  by  special  election;  if  less 
than  one  year,  by  appointment  by  the  county  board.27 
There  is  no  provision  in  the  statute  for  the  appoint- 

24  Prather  v.  Hart,  17  Neb.  598,  24  N.  W.  282. 

25  Conroy  v.  Hallowell,  94  Neb.  794,  144  N.  W.  896. 

26  Prather  v.  Hart,  17  Neb.  598,  24  N.  W.  282;  State  v.  Lansing, 
46  Neb.  514,  64  N.  W.  1104. 

27  Rev.  Stats.,  c.  20,  §  339,  [2278],  [2279]. 

(8) 


Chap.  1]  THE  COUNTY  COUET.  §  G 

ment  of  a  temporary  or  acting  county  judge  to  hold  the 
office  when  the  vacancy  must  be  filled  by  a  special  elec- 
tion, between  the  time  when  the  vacancy  occurs  and 
the  date  when  the  newly  appointed  officer  qualifies. 
An  appointee  under  such  circumstances  would  prob- 
ably be  held  a  de  facto  county  judge  and  his  acts  as 
such  valid.28 

In  Oregon,  the  vacancy  is  filled  by  appointment  by 
the  governor,  and  the  appointee  holds  the  office  until 
the  next  general  election  when  his  successor  is  elected 
for  the  full  term  of  four  years.29 

§  6.    Disqualification  of  county  judge. 

A  county  judge  is  disqualified  by  statute  from  acting 
in  any  case  or  matter  in  which  he  is  next  of  kin  of 
the  deceased,  or  where  he  is  devisee  or  legatee  under  a 
will,  or  is  one  of  the  subscribing  witnesses  thereto,  or 
where  he  is  named  as  executor  or  trustee  therein,  or 
where  he  is  related  to  any  party  in  interest  in  any  pro- 
ceeding before  him,  by  consanguinity  or  affinity,  or  has 
such  an  interest  therein  as  would  preclude  him  from 
acting  as  a  juror  in  such  case  or  matter,  or  where  he 
has  acted  as  attorney  or  counsel  in  any  case  or  matter 
before  him.30  These  restrictions,  which  are  more 
stringent  than  those  of  the  common  law,  would  bar  him 
from  sitting  on  the  probate  of  a  will  which  he  has 
drafted.31 

Under  the  Oregon  practice  he  is  disqualified  by 
direct  interest,  relationship  by  consanguinity  or  affin- 

28  See  Dredla  v.  Bache,  60  Neb.  655,  83  N.  W.  916. 

29  Const.,  art.  5,  §  16;  State  v.  Johns,  3  Or.  536. 
so  Eev.  Stats.,  c.  16,  §  79,  [1206]. 

31  Moses  v.  Julian;  45  N.  H.  52. 

(9) 


§  7  PROBATE  AXD  ADMINISTRATION.  [Chap.  1 

ity  within  the  third  degree,  or  having  been  attorney 
in  the  proceeding  for  either  party.32 

§  7.    Effect  of  disqualification. 

The  disqualification  of  a  county  judge  does  not  bar 
him  from  performing  mere  ministerial  acts,  requiring 
no  exercise  of  judicial  discretion,  such  as  filing  papers 
or  issuing  process  or  notice  of  hearing,33  but  whenever 
a  matter  arises  in  which  his  judicial  discretion  must  be 
exercised,  his  disqualification  completely  deprives  him 
of  jurisdiction  over  such  proceeding.34  Not  only  are 
judicial  acts  performed  by  a  disqualified  judge  void, 
but  they  are  so  opposed  to  the  American  standards  of 
fairness  and  impartiality  demanded  of  its  judges  that 
the  parties  cannot,  either  by  waiver  or  agreement,  vest 
the  court  with  jurisdiction.35 

Form  No.  4. 

OBJECTIONS    TO     COUNTY    JUDGE     ON    ACCOUNT    OF 
EELATIONSHIP. 

In  the  County  Court  of County,  Nebraska, 

In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

Comes  now  C.  D.  and  respectfully  represents  unto  the  court  that 

on  the  day  of  ,  19 — ,  he  filed  his  petition  in  said  court 

for  the  probate  of  the  will  of  said  A.  B.,  and  for  the  appointment  of 
G.  H.  as  executor  of  said  will;  that  said  matter  was  set  for  hear- 
ing by  said  court  for  the  day  of  ,  19 — ,  and  notice 

thereof   ordered  published  in  the  ,  a  newspaper  published  at 

and  within  the  county  aforesaid;  that  J.  K.,  the  judge  of  said  court, 

32  L.  0.  L.,  §  956. 

33  State  v.  Gurney,  17  Neb.  523,  23  N.  W.  524. 

34  Moses  v.  Julian,  45   N.  H.  52;   Gay   v.  Minot,  3   Cush.   (Mass.) 
352;   Schoonmaker  v.  Clearwater,  41  Barb.   (N.  Y.)    200. 

35  Walters  v.  Wiley,  1  Neb.  Unof.  235,  95  N.  W.  456;  Edwards  v.  Rus- 
sell, 21  Wend.  (N.  Y.)  63;  People  T.  De  La  Guerra,  24  Cal.  77. 

(10) 


Chap.  1]  THE   COUNTY  COURT.  §  7 

is  disqualified  from  acting  in  any  proceeding  in  the  settlement  of 
said  estate,  for  the  reason  that  the  said  J.  K.  was  a  son-in-law  of  said 
A.  B.  (is  an  heir  at  law  of  said  A.  B.)  (legatee  under  the  will  of  said 
A.  B.)  [state  other  grounds  of  disqualification,  if  any  such  exist]. 

Your  petitioner  therefore  requests  that  L.  M.,  of  said  county,  or 
some  other  competent  person,  be  appointed,  acting  county  judge  for 
the  purpose  of  hearing  and  determining  all  matters  pertaining  to 
the  settlement  of  said  estate  that  may  come  before  said  court. 

Dated  at ,  Nebraska,  this day  of ,  19 — . 

(Signed)     C.  D. 

Form  No.  5. 

VERIFICATION. 
State  of  Nebraska, 
County, — as. 

C.  D.,  being  first  duly  sworn,  on  oath  says  that  he  has  read  the 
foregoing  petition  by  him  subscribed,  and  knows  the  contents  thereof, 
and  that  the  facts  therein  set  forth  are  true,  as  he  verily  believes. 

(Signed)     C.  D. 

Subscribed   in   my  presence,   and  sworn   to  before   me,  this  

day  of ,  19 — , 

(Signed)     E.  F., 
Notary  Public. 

Form  No.  6. 

OBJECTIONS  TO  COUNTY  JUDGE  ON  ACCOUNT  OF  BIAS  AND 
PARTIALITY. 

In  the  County  Court  of County,  Nebraska. 

In  the  Matter  o-f  the  Estate  of  A.  B.,  Deceased. 

Comes  now  C.  D.  and  respectfully  represents  unto  the  court  that  he 

is  a  grandson  and  heir-at-law  of  said  A.  B.;  that  on  the  day 

of  ,  19 — ,  E.  F.  filed  his  petition  in  said  court  for  the  probate 

of  an  alleged  will  of  said  A.  B.,  and  for  the  appointment  of  him, 
said  E.  F.,  as  executor  thereof;  that  said  matter  was  set  for  hear- 
ing by  said  court  for  the  day  of  ,  19 — ,  and  notice 

thereof  ordered  published  in  the ,  a  newspaper  printed  and  pub- 
lished in  said  county;  that  J.  K.,  the  judge  of  said  court,  is  dis- 
qualified from  acting  in  said  matter,  for  the  following  reasons:  That 
the  said  J.  K.  is  the  attorney  for  said  proponent,  said  E.  F. ;  that 
said  J.  K.  drafted  said  alleged  will,  and  was  present  when  the  same 

(ID 


§  8  PEOBATE  AND  ADMINISTRATION.  [Chap.  1 

was  signed  Toy  said  A.  B.;  that  your  petitioner  has  filed  objections 
to  the  probate  of  said  alleged  will  on  the  ground  that  said  E.  P. 
exerted  undue  influence  over  said  A.  B.,  and  said  instrument  is  no-t 
the  will  of  said  A.  B.,  and  that  the  signature  of  said  A.  B.  to  said 
instrument  was  obtained  by  the  fraud  of  said  proponent  E.  F.;  that 
said  J.  K.  may  be  a  material  witness  in  said  matter. 
[Add  prayer  as  in  No.  4.] 

Form  No.  7. 

REQUEST  FOE  APPOINTMENT  FOR  ACTING  COUNTY  JUDGE 
TO  ACT  IN  A  CERTAIN  CASE. 

To  the  County  Board  of County,  Nebraska: 

I  hereby  request  your  honorable  body  to  appoint  a  competent  and 
disinterested  person  to  act  as  judge  of  the  county  court  of  said 
county,  in  a  certain  matter  therein  pending,  entitled  "In  the  Matter 
of  the  Estate  of  A.  B.  Deceased,"  for  the  reason  that  I  am  disqualified 
to  act  therein. 

Dated  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

Form  No.  8. 

REQUEST  FOR  APPOINTMENT  FOR  ACTING  COUNTY  JUDGE 
ON  ACCOUNT  OF  ABSENCE  OF  JUDGE  FROM  THE  COUNTY. 

To  the  County  Board  of County,  Nebraska: 

I  respectfully  request  your  honorable  body  to  appoint  a  suitable 
and  disinterested  person  to  act  as  judge  of  the  county  court  of  said 
county  during  my  temporary  absence  therefrom. 

Dated  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

§  8.    Appointment  of  acting  county  judge. 

Whenever  a  county  judge  is  disqualified  from  hear- 
ing any  cause  pending  in  his  court,  or  is  temporarily 
disabled  by  sickness  or  otherwise,  the  county  board 
may  appoint  a  competent  person  to  act  in  his  place, 

(12) 


Chap.  1]  THE  COUNTY  COURT.  §  8 

who  shall  have  the  same  authority  and  be  subject  to 
the  same  restrictions  as  the  regular  incumbent.36 

In  the  case  of  the  disqualification  of  the  county 
judge,  the  duties  of  the  appointee  are  limited  to  the 
particular  matter  which  was  the  cause  of  the  appoint- 
ment being  made.  He  is  entitled  to  access  to  the  office 
and  the  seal,  papers  and  records  whenever  necessary.37 

In  the  case  of  other  temporary  appointments,  the 
power  of  the  appointee  ends  when  the  inability  of  the 
judge  to  act  is  removed. 

A  county  judge  who  is  disqualified  should  himself 
request  the  county  board  to  appoint  .someone  to  take 
his  place.  Any  person  having  a  legal  right  or  bene- 
ficial interest  in  any  probate  or  guardianship  matter, 
such  as  a  proponent,  heir,  devisee  or  legatee,  may  file 
objections  to  the  qualification  of  the  judge  and  thus 
secure  the  appointment  of  a  disinterested  person. 

An  acting  county  judge  must  give  bond  and  have 
the  same  approved  in  the  same  manner  and  form  as 
though  he  were  regularly  elected  or  appointed,  and 
also  take  the  oath  of  office.  The  presumption  is  that 
he  was  regularly  appointed  by  competent  authority, 
and  it  is  not  necessary,  in  any  matter  coming  before 
him,  for  the  records  to  show  his  right  to  act  in  the 

•  <iH 

premises. 

In  Oregon,  whenever  a  county  judge  is  disqualified 
by  reason  of  interest,  the  proceedings  may  be  certified 
to  the  circuit  court  and  the  matter  proceed  before  the 
circuit  judge  the  same  as  if  it  had  remained  in  the 
county  court.  In  case  of  the  absence  from  the  county, 

36  Rev.  Stats.,  c.  16,  §  108,  [1235]. 

37  Nebraska  Mfg.  Co.  v.  Maxon,  23  Neb.  224,  36  N.  W.  492. 

38  Taylor  v.  Tilden,  3  Neb.  343. 

(13) 


§  9  PROBATE  AND  ADMINISTRATION.  [Chap.  1 

illness  or  incapacity  of  the  county  judge,  his  duties  in 
all  probate  and  guardianship  matters  may  be  per- 
formed by  any  circuit  judge  for  the  county.39 

§  9.    Jurisdiction  of  county  court — Statutory. 

Courts  of  probate  and  administration,  in  so  far  as 
their  control  over  the  settlement  of  the  estates  of  per- 
sons deceased  and  guardianship  matters  are  concerned, 
derive  none  of  their  authority  from  common  law. 
They  are  solely  creatures  of  the  constitution  and  legis- 
lature, with  such  powers  only  as  are  thereby  given 
them.40 

County  courts  have  exclusive  original  jurisdiction 
within  the  limits  of  the  county  of  the  probate  of  wills, 
the  administration  of  the  estates  of  persons  deceased 
and  the  guardianship  of  minors,  insane  and  incompe- 
tent persons,  and  spendthrifts.41  They  have  power: 

First.  To  hear  and  determine  claims  and  setoffs  in 
the  matter  of  the  estates  of  deceased  persons. 

Second.  To  hear  and  determine  questions  of  appli- 
cations for,  and  to  grant  and  issue,  letters  of  adminis- 
tration, testamentary  and  guardianship,  and  revoke 
the  same. 

Third.     To  take  the  probate  of  wills. 

Fourth.  To  cause  to  be  taken,  receive,  file  and  re- 
cord all  inventories,  sale  and  appraisement  bills  of  the 
estates  of  deceased  persons. 

39  L.  O.  L.,  §  939;  Laws  1911,  p.  427. 

40  Byron  Reed  Co.  v.  Kalbunde,  76  Neb.  801,  108  N.  W.  133;  Wheeler 
v.  Barker,  51  Neb.  846,  71  N.  W.  750;  Grady  v.  Hughes,  64  Mich.  540, 
31  N.  W.  438;  State  v.  Wilson,  38  Md.  338;  Fairfield  v.  Gulliver,  49 
Me.  360;  Lee's  Case,  1  Minn.  60. 

41  Rev.    Stats.,    c.    16,  §  80,    [1206],   c.    18,  §  89,    [1628];    Loosemore 
v.  Smith,  12  Neb.  344,   11  N.  W.  493;  Pettit  v.  Black,  13  Neb.  152, 
12  N.  W.  841;  Stevenson  v.  Valentine,  38  Neb.  902,  57  N.  W.  746. 

(14) 


Chap.  1]  THE   COUNTY   COURT.  §  9 

Fifth.  To  require  executors,  administrators  etnd 
guardians  to  exhibit  and  settle  their  accounts,  and  to 
account  for  the  estate  and  property  which  has  come 
into  their  possession  as  such.42 

Sixth.  To  authorize  guardians  to  sell  or  convey  the 
personal  estate  of  their  wards  to  provide  for  their 
education  and  support.43 

Seventh.  To  remove  for  cause  shown  executors, 
administrators  and  guardians.44 

Eighth.  To  authorize  suits  to  be  brought  on  the 
bonds  of  executors  and  administrators.45 

Ninth.  To  authorize  and  empower  executors  and 
administrators  to  mortgage  the  realty  of  their  de- 
cedents for  the  purpose  of  paying  mortgages  already  a 
lien  on  the  property.46 

Tenth.  To  assign  to  the  surviving  husband  or  wife 
or  children  of  the  deceased  an  allowance  for  their  main- 
tenance pending  administration,  but  not  for  a  longer 
time  than  one  year.47 

Eleventh.  To  assign  the  personal  estate  of  an  in- 
testate to  the  persons  the  court  finds  are  entitled 
thereto.48 

Twelfth.  To  designate  the  persons  to  whom  the  real 
estate  descends  and  the  shares  or 'portions  of  the  same 
to  which  they  are  entitled.49 

42  Kev.  Stats.,  c.  16,  §  80,  [1207]. 

43  Rev.  Stats.,  c.  18,  §  115,  [1654]. 

44  Rev.  Stats.,  c.  17,  §§  70,  85,  [1334],  [1349],  c.  18,  §  116,  [1655]. 

45  Rev.  Stats.,  c.  17,  §  256,  [1520]. 
40  Rev.  Stats.,  c.  17,  §  227,  [1491]. 

47  Rev.  Stats.,  c.  17,  §§  3,  51,  [1267],  [1315]. 

48  Rev.  Stats.,  c.  17,  §  3,  [1267]. 

«  Rev.  Stats.,  c.  17,  §§  1,  2,  [1265],   [1266]. 

(15) 


§  9  PROBATE  AND  ADMINISTRATION.  [Chap.  1 

Thirteenth.  To  enter  decrees  for  the  adoption  of 
children.50 

In  Oregon,  the  county  court  is  given  by  the  consti- 
tution 51  jurisdiction  over  probate  matters  possessed  by 
the  probate  court  at  the  time  of  its  adoption.52  As  a 
court  of  probate  it  is  given  by  statute  exclusive  juris- 
diction, in  the  first  instance,  to  take  proof  of  wills;  to 
grant  and  revoke  letters  testamentary,  of  administra- 
tion and  of  guardianship;  to  direct  and  control  the 
conduct  and  settle  the  accounts  of  executors,  adminis- 
trators and  guardians ;  to  direct  the  payment  of  debts 
and  legacies,  and  the  distribution  of  the  estates  of  in- 
testates ;  to  order  the  sale  and  disposal  of  the  real  and 
personal  estate  of  deceased  persons ;  to  order  the  rent- 
ing, sale  or  other  disposal  of  the  real  and  personal 
property  of  minors ;  to  take  the  care  and  custody  of  the 
person  and  estate  of  a  lunatic  or  habitual  drunkard, 
and  to  appoint  and  remove  guardians  therefor;  to 
direct  and  control  the  conduct  of  such  guardians  and 
settle  their  accounts,  and  to  direct  the  admeasurement 
of  dower ; 53  to  decree  specific  performance  by  an  execu- 
tor or  administrator  of  contracts  made  by  the  decedent 
for  the  sale  of  real  estate.54 

No  other  court  has  authority,  in  the  first  instance, 
to  determine  what  constitutes  the  personal  property 
of  a  decedent  and  the  shares  of  the  heirs.55  In  admeas- 
uring dower  or  curtesy  its  jurisdiction  is  not  exclusive, 
its  powers  being  limited  to  estates  in  which  no  objec- 

60  Rev.  Stats.,  c.  18,  §  84,  [1623]. 

51  Const.,  art.  7,   §  12. 

52  Adams  v.  Lewis,  5  Saw.  229;  State  v.  McDonald,  55  Or.  419,  104 
Pac.  967. 

53  L.  O.  L.,  §  936. 

54  L.  O.  L.,  §§  1269,  1270;  Adams  v.  Lewis,  5  Saw.  229. 

55  De  Bow  v.  Wollenberg,  52  Or.  432,  96  Pac.  536,  97  Pac.  717;  State 
v.  McDonald,  55  Or.  419,  104  Pac.  967. 

(16) 


Chap.  1]  THE   COUNTY   COURT.  §  10 

tions  are  made  by  the  parties  interested,5*  and  it  has 
no  jurisdiction  over  actions  for  the  partition  of  the 
real  estate  of  a  decedent,57  and  cannot  authorize  a 
guardian  to  mortgage  the  real  estate  of  his  ward.58 

§  10.    Equitable  nature  of  county  court  proceedings. 

The  county  court  possesses  much  more  extensive 
powers  over  probate  and  guardianship  matters  than 
the  probate  courts  of  many  states.  It  has  equitable  as 
well  as  legal  jurisdiction,  which  is  exclusive  over  such 
matters,  with  full  authority  to  grant  the  relief  to  which 
the  party  is  entitled,59  excepting  only  those  matters  per- 
taining to  its  jurisdiction  where  the  title  to  real  estate 
is  involved.60 

In  Oregon,  the  county  court  is  a  court  of  superior 
jurisdiction  over  those  matters  which  are  placed  under 
its  control  by  the  constitution  and  the  statutes.61  It 
is  not  vested  with  general  equity  powers,62  or  a  full 
power  over  its  decrees  with  jurisdiction  to  set  them 

58  Chapter  XXXIXa. 

57  Hanner  v.  Silver,  2  Or.  336. 

58  Trutch  v.  Bunnell,  11  Or.  58,  4  Pac.  588. 

59  Lydick  v.  Chancy,  64  Neb.  288,  89  N.  W.  801;  Williams  v.  Miles, 
63  Neb.  859,  89  N.  W.  451;  Id.,  68  Neb.  463,  94  N.  W.  705;  Genau  v. 
Abbott,  68  Neb.  117,  93  N.  W.  942;  Beer  v.  Plant,  1  Neb.  Unof.  772, 
96  X.  W.  348;  Wheeler  v.  Barker,  51  Neb.  846,  71  N.  W.  752;  Wilson 
v.  Coburn,  35  Neb.  530,  53  N.  W.  466;  Glade  r.  White,  42  Neb.  336, 
60  N.  W.  536. 

60  Const.,  art.  8,  §  16;  Best  v.  Gralap,  69  Neb.  811,  99  N.  W.  837. 

61  In  re  Slate's  Estate,  40  Or.  351,  68  Pac.  399;   Russell  v.  Lewis, 
3  Or.  380;  Farley  v.  Parker,  6  Or.  105;  Tustin  v.  Gaunt,  4  Or.  305. 

62  Dunham  v.  Siglin,  39  Or.  291,  64  Pac.  661;  Richardson's  Guardian- 
ship,  39   Or.   246,   64   Pac.   390;    Hillman   v.   Young,   64   Or.   279,   127 
Pac.  793. 

2-Pro.  Ad. 


§  11  PKOBATE  AND  ADMINISTKATION.  [Chap.  1 

aside  for  fraud,63  but  applies  equitable  rules  over  mat- 
ters coming  within  the  scope  of  its  authority.64 

§  11.    Implied  or  inherent  jurisdiction. 

The  power  or  authority  to  do  a  thing  must  of  neces- 
sity carry  with  it  the  right  to  take  any  and  all  steps 
necessary  to  a  complete  control  over  the  matter,  cause 
or  proceeding  before  the  tribunal,  otherwise  the  effect 
of  a  large  part  of  legislative  enactments  would  be  de- 
stroyed, or  their  power  so  crippled  <as  to  make  them  of 
little  use.  Therefore  a  court,  though  of  limited  juris- 
diction, possesses  such  auxiliary  incidental  powers  as 
are  necessary  and  proper  to  carry  into  effect  those 
which  the  legislature  has  seen  fit  to  confer  upon  it,65 
and  that  inherent  authority  vested  in  all  judicial 
tribunals  which  is  necessary  to  a  full  control  of  all  mat- 
ters coming  within  their  jurisdiction.66 

The  power  to  punish  for  contempt  exists  independent 
of  the  statute.67  It  has  inherent  power  to  construe  an 
antenuptial  contract  affecting  personal  property  and 
determine  the  rights  of  the  parties  in  the  property  in 
the  course  of  the  proceedings  for  the  division  and  dis- 
tribution of  the  estate.68 

It  has  power,  which  may  be  exercised  in  the  same 
manner  and  for  the  same  causes  as  in  a  court  of  general 

63  Froebrich  v.  Lane,  45  Or.  13,  76  Pac.  351. 

64  In  re  Morgan's  Estate,  46  Or.  236,  77  Pac.  608;  In  re  Herreen's 
Estate,  40  Or.  90,  66  Pac.  688. 

65  Saylor  v.  Simpson,  45  Ohio  St.  141,  12  N.  E.  181;  Davis  v.  Davis, 
11  Ohio  St.  386. 

66  Morgan  v.  Dodge,  44  N.  H.  255;  Proctor  v.  Wannamaker,  1  Barb. 
Ch.  (N.  Y.)  302. 

67  Baldwin  v.  City  of  New  York,  42  Barb.  (N.  Y.)  549. 

68  Winkle  v.  Winkle,  8  Or.  193. 

(18) 


Chap.  1]  THE   COUNTY   COURT.  §  12 

jurisdiction,  to  correct,  revise,  amend  or  set  aside  its 
decrees,  orders  and  judgments.69  Other  inherent  pow- 
ers are  to  assign  the  homestead  to  the  widow,  or  sur- 
viving spouse,70  to  order  the  transfer  of  the  residue  of 
the  estate  in  the  hands  of  the  ancillary  administrator, 
after  all  debts  and  demands  against  the  estate  in  this 
state  have  been  paid  to  the  parties  entitled  thereto,71 
and  to  dismiss  an  action  or  proceeding  brought  before 
it.72 

By  virtue  of  its  inherent  powers  it  has  original  juris- 
diction of  a  petition  by  an  executor  or  other  party  in 
interest,  pending  administration  for  the  construction 
of  a  will,  for  the  purpose  of  directing  the  representa- 
tive in  the  discharge  of  his  duties.73 

It  has  no  authority  to  set  aside  a  decree  on  motion 
for  a  new  trial  for  errors  of  law.  The  remedy  is  by 
taking  the  matter  to  the  district  court. 

§  12.    Clerk  of  the  county  court. 

In  counties  where  the  county  judge  has  been  author- 
ized by  the  county  board  to  employ  one  or  more  clerks, 
he  may  designate  and  appoint  in  writing  one  of  said 
clerks  to  be  a  clerk  of  the  county  court.  Said  appoint- 
ment may  be  revoked  at  his  pleasure,  and  said  appoint- 
ment and  revocation  shall  be  filed  in  the  office  of  the 

69  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  451;  Andersen  v.  Ander- 
sen, 69  Neb.  565,  96  N.  W.  276. 

70  Guthman  v.  Guthman,  18  Neb.  98,  24  N.  W.  435. 

71  Childress  v.  Bennett,   10  Ala.   731;   Dawes  v.  Boylston,  9  Mass. 
337. 

72  Heermans  v.  Hill,  4  Thomp.  &  C.  (N.  Y.)  602. 

73  Youngson  v.  Bond,  69  Neb.  356,  95  N.  W.  700;  Andersen  v.  Ander- 
sen, 69  Neb.  565,  96  N.  W.  276. 

(19) 


§  12  PROBATE   AND  ADMINISTRATION".  [Cliap.  I 

county  clerk  of  said  county.74  Before  entering  upon 
the  duties  of  his  office  the  clerk  must  take  and  sub- 
scribe an  oath  of  office  and  file  the  same  with  the  county 
clerk.75 

In  Oregon,  the  county  clerk  is  ex  officio  clerk  of  the 
county  court.76  He  has  the  custody  of  the  seal  of  the 
court  and  performs  the  usual  duties  of  a  clerk  of  a  court 
of  record,  which  are  principally  of  a  ministerial  char- 
acter.77 He  is  elected  at  each  general  election  for  the 
term  of  two  years,78  and  is  required  to  give  a  bond  in 
the  sum  of  $10,000  or  $15,000,  if  required  by  the  county 
court  to  the  state  of  Oregon,  conditioned  upon  the 
faithful  performance  of  his  duties  and  the  payment, 
according  to  law,  of  all  moneys  coming  into  his  hands. 
His  certificate  of  election  and  official  oath  must  also  be 
filed.79 

Form  No.  9. 
OATH  OF  CLERK  OF  COUNTY  COURT. 

I  do  solemnly  swear  that  I  will  support  the  constitution  of  the 
United  States,  the  constitution  of  the  state  of  Nebraska,  and  faith- 
fully and  impartially  perform  the  duties  of  clerk  of  the  county  court 

of  according  to  law  and  the  best  of  my  ability.     So  help  me 

God. 

(Signed)     C.  D. 

He  has  substantially  the  same  powers  in  connection 
with  the  business  of  the  county  court  as  a  clerk  of  a 
court  of  general  jurisdiction,  and  may  administer  oaths 

74  Rev.  Stats.,  c.  16,  §  112,    [1239];   Zimmerman  v.  Trude,   80  Neb. 
503,  114  N.  W.  641;  In  re  Creighton's  Estate,  88  Neb.  107,  129  N.  W. 
181. 

75  Rev.  Stats.,  c.  16,  §  113,  [1240]. 

76  Const.,  art.  7,  §  15. 

77  L.  O.  L.,  §  1033. 

78  L.  O.  L.,  §  2934. 

79  L.  O.  L.,  §§  2936,  2938,  2939. 

(20) 


Chap.  1]  THE   COUNTY   COURT.  §  13 

and  fix  dates  of  hearing.  All  his  acts,  however,  are  re- 
quired to  be  in  the  name  of  the  county  judge.  His  pay 
is  fixed  by  the  county  board  and  is  payable  from  the 
fees  of  the  office.80 

§  13.    County  court  practice  and  procedure. 

Proceedings  in  probate  and  guardianship  matters  in 
the  county  court  are  similar  to  those  in  a  case  in  equity. 
The  court  acquires  jurisdiction  by  the  filing  of  a  peti- 
tion, which  should  be  under  oath,  though  in  some  pro- 
ceedings, where  service  of  process  or  notice  to  inter- 
ested parties  is  required,  failure  to  verify  it  is  not  a 
fatal  defect,  or  of  a  verified  statement,  and,  with  a  few 
exceptions,  by  the  issue  and  service  of  notice  and  cita- 
tion. Interested  parties,  if  competent,  may  waive  ser- 
vice and  enter  their  voluntary  appearance  as  in  the 
district  court.  In  a  few  cases  service  of  process  is  not 
required,  but  may  be  had  if  the  court  so  orders ;  and 
if  none  is  ordered,  a  decree  may  be  entered  on  the  hear- 
ing strictly  ex  parte. 

The  same  formality  is  not  required  of  county  court 
pleadings  as  in  cases  in  a  court  of  general  jurisdiction, 
nor  do  the  statutes  require  the  filing  of  answer  or  objec- 
tions, though  such  is  the  usual  practice.  All  issues 
are  determined  by  the  court. 

The  county  court  acts  judicially  in  all  hearings  on 
petitions.  The  jurisdictional  allegations  of  a  petition 
must  be  established  in  the  same  manner  as  in  a  case  in 
the  district  court,  and  an  ex  parte  affidavit  is  admis- 

80  Eev.  Stats.,  c.  16,  §  114,  [1241];  In  re  Creighton's  Estate,  88  Neb. 
107,  129  N.  W.  181. 

(21) 


§  13  PROBATE  AND  ADMINISTRATION.  [Cliap.  1 

sible  for  the  same   purposes,  and    none  other,  in  the 
former  as  in  the  latter  court. 

County  court  practice  in  Oregon  differs  from  that  in 
Nebraska  in  that  there  are  some  proceedings  in  which 
the  filing  of  a  verified  petition  setting  out  the  juris- 
dictional  facts  gives  the  court  power  to  grant  the  order 
prayed  for,  without  the  issue  and  service  of  process 
and  without  hearing.  In  other  proceedings  a  citation 
must  issue  and  service  of  the  same,  either  personally 
or  by  publication,  as  the  residence  of  the  parties  permit 
and  as  ordered  by  the  court.  Proceedings  in  probate 
and  guardianship  matters  are  not  "civil  cases"  within 
the  general  definition  of  the  term.  The  jurisdiction  of 
the  court  over  them  is  exercised  in  the  same  manner 
as  a  suit  in  equity,  and  all  disputed  questions  of  fact 
are  determined  by  the  court  without  the  aid  of  a  jury.81 
The  county  court  exercises  its  powers  by  means  of: 
1.  A  citation  to  the  party;  2.  An  affidavit  or  statement 
or  verified  petition  of  a  party ;  3.  A  subpoena  to  a  wit- 
ness ;  4.  Orders  and  decrees ;  5.  An  execution  or  war- 
rant to  enforce  them.  Proceedings  are  in  writing  and 
had  on  the  application  of  a  party  or  the  order  of  the 
court.82 

The  allegations  of  a  petition  to  obtain  like  action  on 
the  part  of  the  court  are  substantially  the  same  in  both 
states.  There  is  some  difference  in  the  form  of  the 
process;  under  the  Oregon  practice  it  being  a  citation 
to  a  party  to  appear,  and  in  Nebraska  a  notice  of  a 
hearing.  Orders  and  decrees  differ  in  their  formal 
parts  only,  though  in  many  proceedings  being  iden- 
tical. The  usual  Oregon  order  is  based  on  a  verified 
petition,  its  formal  part  reciting  the  jurisdictional 
facts  appearing  from  the  petition  on  file,  while  most 

81  Stevens  v.  Meyers,  62  Or.  411,  126  Pac.  29. 

82  L.  O.  L.,  §  1135. 

(22); 


Chap.  1]  THE   COUNTY   COURT.  §  14 

Nebraska  decrees  are  based  on  findings  at  a  hearing 
after  notice,  which  notice  and  service  of  the  same  is 
jurisdictional. 

The  proper  title  to  all  papers  filed  in  probate  and 
administration  matters  is: 

In  the  County  Court  of County,  Nebraska. 

In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

In  guardianship  matters: 

In  the  County  Court  of County,  Nebraska. 

In  the  Matter  of  the  Guardianship  of  A.  B.,  a  Minor 
[Incompetent  Person,  Spendthrift], 

§  14.    Process  and  service. 

The  county  court  has  power  to  issue  such  process 
to  the  sheriff  of  any  county  in  the  state  as  is  necessary 
in  the  discharge  of  the  powers  conferred  upon  him,83 
all  of  which  must  be  signed  in  the  name  of  the  county 
judge  and  bear  the  seal  of  the  court. 

Process,  except  in  proceedings  for  contempt,  may  be 
served  by  personal  service,  by  leaving  a  copy  at  the 
usual  place  of  residence  of  the  party  to  be  served,  or 
if  the  party  be  a  nonresident,  by  publication.  Service 
by  publication  may  be  had  in  many  cases  where  the 
parties  are  residents,  if  the  court  so  orders.84  The 
court  is  without  jurisdiction  to  order  personal  service 
of  process  outside  the  state,  unless  the  statutory  affi- 
davit that  service  cannot  be  had  in  this  state  is  filed.85 

83  Rev.  Stats.,  c.  16,  §§  98,  [1225],  [1226]. 

84  Rev.  Stats.,  c.  16,  §  99,  [1226]. 

86  Boden  v.  Meier,  71  Neb.  191,  98  N.  W.  701, 

(23) 


§  15  PROBATE  AND  ADMINISTRATION.  [Chap.  1 

The  court  must  designate  the  paper  requested  by  the 
petitioner.86 

§  15.    Attorneys. 

The  county  court  while  acting  on  probate  and  guard- 
ianship matters  being  a  court  of  record,87  no  person 
except  a  regularly  licensed  attorney  at  law,  unless  he 
be  a  party  to  the  proceeding,  can  commence,  conduct 
or  defer,  d  any  proceeding,  either  by  using  or  subscrib- 
ing his  name,  or  the  name  of  any  other  person,  or  by 
drawing  pleadings  or  other  papers  to  be  signed  by  a 
party  before  the  court.88 

The  county  judge  "is  not  permitted  to  practice  as  an 
attorney  before  himself,  nor  draw  any  paper  or  written 
instrument  to  be  filed  in  his  own  court,  except  such 
papers  as  he  is  required  by  law  to  draw  himself." 

The  papers  which  should  be  both  prepared  and  filed 
by  a  party  or  his  attorney  are  petitions,  applications, 
answers,  replies,  motions,  objections,  oaths,  inven- 
tories, proof  of  claims,  reports  and  accounts,  and  in 
many  counties  the  practice  regarding  preparation  of 
orders  and  decrees  is  the  same  as  in  the  district  court. 

A  county  judge  is  governed  by  the  same  code  of 
judicial  ethics  as  is  a  judge  of  the  supreme  court,  which 
forbids  a  judge  from  giving  advice  concerning  matters 
before  him  to  parties  interested  therein.  He  may,  in 
the  interests  of  justice,  cite  parties  to  appear  of  his 
own  motion.  His  instructions  to  an  executor,  admin- 
istrator or  guardian,  except  by  order  or  decree  duly 

86  Civ.  Code,  §  86. 

87  Section  1,  supra. 

88  Rev.  Stats.,  e.  5,  §  1,  [265].  See  L.  O.  L.,  §  1075. 

89  Eev.  Stats.,  c.  5,  §  11,  [275]. 

(24) 


Chap.  1]  THE   COUNTY   COUBT.  §  16 

made  in  the  manner  provided  by  law,  are  not  binding, 
and  afford  such  representative  no  protection  what- 
ever.90 

§  16.    Guardians  ad  litem. 

The  county  court  has  authority  in  all  matters  pend- 
ing therein,  in  which  a  minor  is  interested  and  is  not 
represented  by  a  general  guardian,  to  appoint  a 
guardian  ad  litem  to  appear  for  and  in  his  behalf.91 
Such  guardian  should  always  be  an  attorney  of  the 
court.  He  should  devote  the  same  care,  skill  and  in- 
tegrity to  the  case  of  his  ward  as  though  he  were  acting 
under  an  express  retainer  on  behalf  of  his  client.92  He 
should  not  permit  himself  to  become  merely  an  assist- 
ant of  the  other  attorneys,  unless  the  interest  of  his 
ward  is  identical  with  that  of  their  clients.93  He  is 
entitled  to  a  reasonable  compensation,  payable  from 
the  estate,  to  be  fixed  by  the  court.94 

Such  appointment  should  be  made,  unless  the  minor 
is  otherwise  represented,  on  a  hearing  for  the  probate 
of  a  will  where  there  are  indications  of  undue  influ- 
ence, testamentary  incapacity,  or  other  grounds  for  a 
contest.  It  is  properly  made  on  a  hearing  on  the  final 
account  of  an  executor  or  administrator,  especially 
where  such  representative  is  the  general  guardian,  and 
in  all  other  proceedings  pending  administration,  when 

90  In  re  O'Brien's  Estate,  80  Neb.  125,  113  X.  W.  1001. 

»l  Civ.  Code,  §38;  Rev.  Stats.,  c.  18,  §  100,  [1639];  L.  0.  L.,  §1318. 

92  Bonacum  v.  Manning,  85  Neb.  60,  122  N.  W.  711;  83  Neb.  418, 
119  X.  W.  672. 

93  Willing  v.  Plambeck,  76  Xeb.  195,  107  N.  W.  248. 
»4  Rev.  Stats.,  c.  5,  §  13,  [277]. 

(25) 


§  17  PEOBATE  AND  ADMINISTRATION".  [Cliap.  1 

the  rights  of  the  minors  seem  to  demand  special  atten- 
tion. 

The  court  should  always  appoint  a  guardian  ad  litem 
on  the  application  for  the  appointment  of  a  guardian 
of  an  alleged  incompetent  person  or  spendthrift,  un- 
less such  person  is  represented  by  an  attorney  of  his 
own  selection  or  has  already  been  adjudged  insane. 

No  party  to  a  proceeding  has  a  right  to  dictate  who 
shall  be  appointed,  but  a  suggestion  to  the  court  is  not 
improper.95 

Under  no  circumstances  should  anyone  in  any  way 
connected  with  the  county  judge's  office  be  appointed. 
A  clerk  or  assistant  of  the  county  judge  is  prohibited 
from  practicing  in  the  county  court  the  same  as  the 
judge  himself. 

§  17.    Records  of  county  court. 

Consecutive  file  numbers  are  required  to  be  assigned 
to  each  matter  or  proceeding  filed  in  the  probate  divi- 
sion of  the  county  court,  which  must  be  noted  on  all  the 
record  books.  Such  books  consist  of  a  probate  record, 
a  fee  book,  an  inheritance  tax  record,  an  adoption 
record,  a  general  index  and  an  index  to  wills.  The 
probate  record  contains  the  title  to  the  matter  or  pro- 
ceeding, the  names  of  the  parties,  the  file  number,  and 
a  complete  record  of  all  petitions,  notices,  citations, 
proofs  of  service  of  same,  inventories,  reports,  ac- 
counts, pleadings  filed  in  contested  will  cases,  mandates 
from  higher  courts,  reports  of  commissioners  and  ap- 
praisers and  all  orders  and  decrees.  Evidence  should 
not  be  recorded. 

95  Willms  v.  Plambeck,  76  Neb.  195,  107  N.  W.  248. 
(26) 


Chap.  1]  THE   COUNTY   COURT.  §  17 

The  fee  book  contains  the  title  of  each  probate, 
guardianship  or  adoption  proceeding,  the  file  number, 
a  complete  dated  itemized  statement  of  the  fees  re- 
ceived by  the  court  for  all  services  performed  in  regard 
to  the  particular  matter,  from  whom  the  same  were 
received,  and  the  names  of  the  persons  to  whom  paid.96 

The  inheritance  tax  book  contains  the  returns  made 
by  the  appraisers,  the  cash  values  of  annuities,  life 
estates  and  terms  of  years  and  other  property  fixed  by 
him,  and  the  tax  assessed  thereon,  and  the  amounts  of 
any  receipts  for  payments  thereof  filed  with  him.97 

The  adoption  book  contains  a  complete  record  of  all 
proceedings  for  the  adoption  of  children,  including 
decrees.98 

The  general  index,  as  its  name  indicates,  is  a  com- 
plete index  showing  where  all  proceedings  are  re- 
corded, and  the  page  of  the  fee  book  where  the  fees 
charged  and  received  are  entered. 

The  index  to  wills  contains  a  list  of  all  the  wills 
filed  for  safekeeping,  with  the  name  of  the  testator,  the 
name  of  the  party  filing  the  same,  the  date  of  filing, 
and  the  name  of  the  party  to  whom  delivered.99  A 
good  many  counties  have  adopted  what  is  usually 
termed  the  "loose-leaf  record  system,"  by  which  the 
records  are  typewritten  and  bound  together.  The  en- 
tire proceeding  then  appears  in  consecutive  order,  the 
same  as  a  complete  record  in  a  case  in  the  district  court, 

96  Rev.  Stats.,  c.  16,  §  106,  [1233]. 

97  Rev.  Stats.,  c.  69,  §  350,  [6638]. 

98  Rev.  Stats.,  c.  18,  §  86,  [1625]. 
»9  Rev.  Stats.,  c.  16,  $  106,  [1233]. 

(27) 


§  17  PROBATE   AND   ADMINISTRATION.  [Chap.  1 

instead  of  being  scattered  through  a  number  of  pages, 
as  under  the  old  plan. 

Under  the  Oregon  practice  the  following  books  are 
kept :  1.  A  register,  in  which  shall  be  entered  a  memo- 
randum of  all  official  business  transacted  by  the  court 
or  a  judge  thereof  appertaining  to  the  estate  of  each 
person  deceased,  under  the  name  of  such  person, — that 
pertaining  to  the  guardianship  of  an  infant  under  the 
name  of  the  infant,  and  that  pertaining  to  an  insane 
person  or  drunkard  under  his  name. 

2.  A  record  of  wills,  in  which  shall  be  recorded  all 
wills  proven  before  the  court  or  judge  thereof,  with 
the  order  of  probate  thereof,  and  of  all  wills  proved 
elsewhere  upon  which  letters  of  administration   are 
issued  by  the  direction  of  such  court  or  judge. 

3.  A  record  of  the  appointment  of  administrators, 
whether  general  or  special,  or  of  a  partnership  and  of 
executors. 

4.  A  record  of  the  appointment  of  guardians  of  in- 
fants, insane  persons  and  drunkards. 

5.  A  record  of  accounting  and  distribution  in  which 
shall  be  entered  a  summary  balance  sheet  of  the  ac- 
counts   of   executors,   administrators   and   guardians, 
with  the  orders  and  decrees  relating  to  the  same;  a 
memorandum  of  executions  issued  thereon,  with  note 
of  satisfaction  when  satisfied;  also  orders  and  decrees 
relating  to  real  property  and  to  the  distribution  of  the 
proceeds  thereof ;  and  notices  of  all  money  or  securities 
paid  or  deposited  in  court  as  proceeds  of  such  sales 
or  otherwise;  and  a  statement  showing  the  names  of 
creditors,  and  the  debts  established  and  entitled  to  dis- 
tribution, the  amount  to  which  each  person  is  entitled 
out  of  such  funds,  and  the  amount  actually  paid  to  each 
person,  and  when  paid. 

6.  A  record  of  the  appointment  of  the  admeasurer 
of  dower,  with  all  orders  and  decrees  relating  to  the 
same  and  the  admeasurer 's  report. 

(28) 


Cliap.  1]  THE   COUNTY   COURT.  §§  18,  19 

7.  An  order  book,  in  which  shall  be  entered  all  or- 
ders in  any  manner  pertaining  to  the  administration 
of  the  estate  or  the  guardianship  matter,  and  appoint- 
ments of  special  guardians,  appraisers  or  referees. 
To  each  of  such  books  there  shall  be  attached  an  in- 
dex, securely  bound  in  the  volume,  referring  to  the 
entries  or  records  in  alphabetical  order,  under  the 
name  of  the  person  to  whose  estate  or  business  they 
relate,  and  naming  the  page  of  the  book  where  the 
entry  is  made.100 

§  18.     Certifying  records. 

Every  record  made  in  the  county  court,  excepting 
original  orders,  judgments  or  decrees  thereof,  shall 
have  attached  thereto  a  certificate,  signed  by  the  judge 
of  such  court,  showing  the  date  of  such  record  and 
the  county  in  which  the  same  is  made,  and  it  shall  not 
be  necessary  to  call  such  judge  or  his  successor  in  office 
to  prove  such  record  so  certified.  In  any  cause,  mat- 
ter or  proceeding  in  which  the  probate  court  or  pro- 
bate judge  has  jurisdiction,  and  is  required  to  make  a 
record  not  provided  for  by  statute,  such  record  shall  be 
certified  in  the  same  way  and  with  like  effect  as  afore- 
said.101 

§  19.    Probate  books  public  records. 

All  probate  books  are  public  records,  and  any  citizen 
of  this  state,  or  any  person  interested  in  the  matters 
therein  contained,  may  examine  them  free  of  charge  at 
any  proper  time  when  the  court  is  open  for  business.102 

100  L.  0.  L.,  §  1136. 

101  Rev.  Stats.,  c.  19,  §  107,   [1234]. 

102  state  v.  Meeker,  19  Neb.  106,  26  N.  W.  620. 

(29) 


§  20  PROBATE  AND  ADMINISTRATION.  [Chap.  1 

No  papers  or  files  of  any  proceeding  should  be  taken 
from  the  courtroom  unless  the  person  taking  them 
gives  his  receipt  therefor.  The  practice  of  taking 
away  the  files  should  be  discouraged  as  much  as  pos- 
sible. 

Form  No.  10. 
EECEIPT  FOB  FILES. 

In  the  County  Court  of County,  Nebraska. 

In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

Received  of  the  county  judge  complete  files  in  the  above  action. 

Dated  this day  of ,  19 — . 

(Signed)     F.  D., 

Attorney  for  . 


§  20.    Fees  and  salaries  of  county  judges. 

The  salary  of  the  county  judge  is  fixed  by  the  stat- 
ute and  is  payable  solely  from  the  fees  of  his  office,  and 
is  based  on  the  population  of  the  county. 

In  counties  of  under  25,000  population,  it  is  $1,500 
per  year;  over  25,000  and  under  60,000,  $2,000;  and 
over  60,000,  $2,500. 

In  counties  having  a  population  of  under  25,000,  the 
county  board  may  allow  him  one  or  more  assistants 
and  fix  their  salaries  at  not  to  exceed  $1,000;  in  coun- 
ties of  over  25,000  and  under  60,000,  he  is  allowed  a 
clerk  at  $1,000  a  year;  in  counties  of  over  60,000  and 
under  140,000,  a  clerk  at  $1,200;  and  in  counties  of 
over  140,000,  a  clerk  of  $1,500,  together  with  such 
other  assistants  as  may  be  allowed  him  by  the  county 
board,  which  also  fixed  their  salaries.  In  counties 
having  a  population  of  over  25,000  and  under  60,000, 
all  the  fees  in  excess  of  his  own  salary  are  paid  into 
(30) 


Chap.  1]  THE   COUNTY  COURT.  §  20 


county  treasury,  and  the  salaries  of  the  clerk  and 
assistants  are  paid  from  the  general  fund  of  the  county. 
In  all  other  counties,  his  own  salary  and  the  salaries 
of  his  clerk  and  assistants  are  payable  from  the  fees 
received.  All  money  retained  for  clerk  or  deputy  hire 
must  be  used  for  that  purpose,  and  the  balance,  if  any, 
is  paid  into  the  county  treasury.103 

The  county  judge  is  required  to  collect  fees  for  ser- 
vices as  follows:  Receiving,  recording  and  filing  a  peti- 
tion for  letters  of  administration,  testamentary  or  of 
guardianship,  not  exceeding  two  hundred  words,  fifty 
cents,  and  ten  cents  for  each  hundred  words  in  excess 
thereof;  affidavit,  twenty-five  cents;  order  of  hearing, 
fifty  cents;  admitting  will  to  probate,  two  dollars; 
approving  bond,  twenty-five  cents;  recording  bond,  ten 
cents  per  hundred  words;  granting  letters  testamen- 
tary, of  administration  or  guardianship  and  recording 
same,  two  dollars;  copy  of  letters,  fifty  cents  and  ten 
cents  for  each  hundred  words  in  excess  of  one  hundred; 
filing  account  not  exceeding  two  hundred  words,  fifty 
cents  and  ten  cents  per  hundred  for  the  excess  thereof; 
making  and  recording  order  or  decree,  fifty  cents  and 
ten  cents  per  hundred  words  in  excess  of  one  hundred; 
examining  account,  not  exceeding  fifty  vouchers,  one 
dollar,  for  each  additional  voucher,  two  cents;  issuing 
commission  to  appraisers  or  commissioners,  fifty  cents; 
filing  report  of  same,  or  inventory  or  sale  bill,  not  ex- 
ceeding two  hundred  words,  fifty  cents  and  ten  cents 
for  each  hundred  words  in  excess  thereof;  recording 
report  of  commissioners  to  make  partition,  not  exceed- 
ing two  hundred  words,  fifty  cents,  for  each  hundred 

103  Ecv.  Stats.,  c.  21,'§  33,  [2453]. 

(31) 


§§  21,  22  PROBATE  AND  ADMINISTRATION.  [Chap.  1 

words  in  excess  thereof,  one  cent  for  ten;  filing  any 
petition  for  other  purpose,  fifty  cents  and  ten  cents 
for  each  hundred  words  in  excess  of  one  hundred ;  filing 
and  approving  or  rejecting  claim,  ten  cents;  adminis- 
tering oath,  ten  cents;  certificates,  twenty-five  cents; 
filing  any  other  paper,  ten  cents,  and  recording  same, 
one  cent  per  ten  words;  indexing,  twenty-five  cents  for 
first  entry  and  five  cents  for  each  other  entry,  but  not 
exceeding  one  dollar;  indexing  will,  twenty-five  cents; 
each  day's  attendance  on  the  trial  of  a  probate  case, 
one  dollar.104  The  statute  does  not  authorize  the 
county  judge  to  tax  up  a  dollar  fee  every  time  he  per- 
forms any  duty  in  regard  to  an  estate,  but  only  when 
he  performs  some  judicial  act  on  the  petition  or  appli- 
cation of  an  interested  party. 

§  21.    Sheriffs'  and  constables'  fees. 

Sheriffs  and  constables  are  entitled  to  the  following 
fees  for  service  of  process  in  probate,  administration 
and  guardianship  matters:  For  serving  any  notice,  or 
order  of  court,  or  motion,  fifty  cents;  for  making  copies 
of  same,  twenty-five  cents  for  each  copy;  mileage,  each 
mile  necessarily  traveled,  five  cents.  They  may  be  col- 
lected in  advance.105 

§  22.    Printers'  fees. 

For  publishing  such  legal  notices  as  shall  be  required 
by  the  county  court,  newspapers  are  entitled  to  the  fol- 
lowing fees:  For  each  square  of  ten  lines,  for  the  first 
insertion,  one  dollar;  each  subsequent  insertion,  for 

104  Eev.  Stats.,  c.  21,  §  29,  [2247]. 

105  Rev.  Stats.,  c.  21,  §§  21,  39,  [2441],  [2459]. 

(32) 


Chap.  1]  THE  COUNTY  COURT.  §  23 

each  square  of  ten  lines,  fifty  cents.  Each  advertise- 
ment under  ten  lines  is  deemed  a  square,  and  each 
fractional  part  of  a  square  is  counted  as  a  full  square.106 
If  less  than  the  legal  rate  is  charged,  the  benefit  accrues 
to  the  estate.107 

§  23.    Witnesses'  and  appraisers'  fees. 

Witnesses  before  the  county  court  are  allowed  one 
dollar  a  day  for  attendance,  and  five  cents  a  mile  for 
each  mile  necessarily  traveled.108 

The  fees  of  an  appraiser  of  an  estate  are  not  fixed 
by  statute.  They  should  be  paid  a  reasonable  com- 
pensation for  their  services,  to  be  approved  by  the 
court  on  the  annual  or  final  account. 

Appraisers  under  the  inheritance  tax  law  are  allowed 
a  reasonable  compensation  to  be  fixed  by  the  court  and 
mileage.  In  determining  the  same  it  is  proper  for  the 
court  to  consider,  in  addition  to  the  time  necessarily 
involved,  the  cost  of  reducing  the  testimony  to  writing, 
and  the  questions  of  law,  if  any,  passed  upon  by  him  in 
making  his  findings.  Witnesses  before  appraisers  are 
allowed  two  dollars  per  day  and  mileage.109 

In  Oregon,  the  salary  of  the  county  judge  of  each 
county  is  fixed  by  the  legislature. 

Fees  for  the  various  services  performed  in  connec- 
tion with  probate  and  guardianship  matters  are  col- 
lected by  the  clerk  and  are  as  follows : 

For  issuing  letters  testamentary,  of  administration 
or  guardianship,  fifty  cents ;  in  Curry,  Klatsop,  Colum- 

106  Rev.  Stats.,  c.  21,  §  46,  [2466]. 

107  Phenix  Ins.  Co.  v.  McEvony,  52  Xeb.  566,  72  N.  W.  956. 

108  Rev.  Stats.,  c.  21,  §  45,  [2465]. 

109  Rev.  Stats.,  c.  69,  §  344,   [6632]. 

3— Pro.  Ad.  (33) 


§  23  PROBATE   AXD   ADMINISTRATION.  [Chap.  1 

bia,  Josephine,  Klamath,  Lake  and  Tillamook  coun- 
ties, one  dollar. 

For  recording  any  judgment,  order,  bill  or  appoint- 
ment of  any  executor,  administrator  or  guardian,  for 
each  folio,  ten  cents;  in  the  counties  above  named, 
twenty-five  cents. 

For  making  all  indices  in  relation  to  an  estate,  fifty 
cents;  in  the  counties  above  named,  one  dollar. 

For  making  and  keeping  a  register  in  relation  to  an 
estate,  fifty  cents. 

For  making  and  keeping  a  record  of  accounting  and 
distribution  in  relation  to  any  estate,  one  dollar;  in 
the  counties  above  named,  two  dollars  and  fifty  cents. 

For  recording  the  appointment  of  any  admea surer  of 
claims,  fifteen  cents. 

For  issuing  a  writ,  order  or  process  except  subpoena, 
forty  cents. 

For  issuing  subpoena  for  one  person,  fifteen  cents; 
each  additional  person,  five  cents. 

For  filing  papers,  ten  cents  each. 

For  swearing  a  witness,  ten  cents. 

For  taking  and  approving  a  bond,  ten  cents. 

For  official  certificate,  either  with  or  without  seal, 
twenty-five  cents.110 

Sheriffs  are  allowed  for  serving  a  citation,  notice  or 
order,  twenty-five  cents  for  the  first  party  and  five  cents 
for  each  additional  party  or  witness ;  for  making  copy 
of  same,  ten  cents  per  folio,  but  no  charge  can  be  made 
unless  such  copy  is  actually  made  by  him.111 

All  fees  of  the  clerk  are  required  to  be  paid  to  the 
county  treasurer,  and  the  county  judge,  clerk  of  the 
county  court,  and  necessary  deputies  are  paid  by  war- 
rants on  the  general  fund  of  the  county. 

Before  the  filing  of  any  proceedings  in  probate,  in- 
cluding petitions  for  the  probate  of  wills,  for  letters  of 

no  L.  O.  L.,  §§  3108,  3126. 
ill  L.  O.  L.,  §  1310. 

(34) 


Chap.  1]  THE  COUNTY  COURT.  §  24 

administration,  and  in  will  contest  proceedings,  the 
following  fees  must  be  charged  and  collected  by  the 
clerk:  $2.50  where  the  estate  is  under  $500  in  value; 
$5.  estates  between1  $500  and  $1,000;  estates  between 
$1,000  and  $2,000,  $7.50;  between  $2,000  and  $4,000, 
$10 ;  $4,000  to  $8,000,  $15 ;  over  $8,000,  $20.  The  party 
filing  any  answer,  demurrer,  motion  or  objection  is 
required  to  pay  the  sum  of  $3. 

The  fees  of  witnesses  are  the  same  as  in  other  courts 
of  record,  two  dollars  per  day  and  mileage  of  ten  cents 
per  mile,  except  in  counties  of  over  fifty  thousand  in- 
habitants, where  mileage  is  but  five  cents.112 

There  is  no  statute  in  Oregon  fixing  the  fees  of  a 
newspaper  for  publishing  probate  notices. 

All  fees  and  costs  of  the  court  and  its  officers  may 
be  paid  into  court  by  the  executor,  administrator  or 
guardian,  which  payment  releases  the  parties  from  lia- 
bility, and  disbursed  to  the  parties  entitled  thereto.113 

§  24.  Original  jurisdiction  of  district  court  over  pro- 
bate and  guardianship  matters. 
While  the  county  court  is  the  distinctively  probate 
court  in  Nebraska,  there  are  certain  matters  of  which 
probate  courts  usually  have  jurisdiction  which  are  ex- 
clusively within  the  control  of  the  district  court  or  a 
judge  thereof.  These  powers  are  limited  to  matters 
pertaining  to  the  transfer  of  the  title  to  real  estate. 
Such  court,  or  a  judge  thereof,  at  chambers  anywhere 
within  the  judicial  district  has  power  to  grant  licenses 
for  the  sales  of  real  estate  of  decedents  for  the  payment 
of  debts  and  legacies,  to  authorize  guardians  to  sell  the 

112  L.  0.  L.,  §  3145. 

113  Rev.  Stats.,  c.  16,  §  115,  [1242]. 

(35) 


§  24  PBOBATE  AND  ADMINISTRATION.  [Chap.  1 

lands  of  their  wards,  to  authorize  executors  or  admin- 
istrators to  mortgage  real  estate,  and  also  has  exclusive 
jurisdiction  of  special  proceedings  for  the  enforcement 
of  real  estate  contract  made  by  decedents.114 

Under  the  Oregon  practice  the  county  court  has  ex- 
clusive original  jurisdiction  over  these  matters. 

The  district  court  does  not  possess  the  general  equity 
jurisdiction  over  probate  matters  formerly  exercised 
b)r  a  court  of  chancery.  There  are  some  matters  con- 
nected with  the  settlement  of  estates,  like  actions  by 
an  executor  or  administrator  to  recover,  for  the  benefit 
of  creditors,  property  fraudulently  transferred  by  a 
decedent,  and  partition  cases,  over  which  it  has  exclu- 
sive jurisdiction. 

114  Chapters    XXI,   XXIV,  XXXVIII,  post;   Stewart  v.   Daggy,   13 
Neb.  290,  13  N.  W.  399. 

(36) 


CHAPTER  II. 

PREPARATION  AND  DRAFTING  OF  WILLS. 

§  25.  Will — Definitions. 

26.  Elementary  Eules  for  Drafting  Wills. 

27.  Restrictions  on  Devises  and  Bequests. 

28.  Rule  in  Shelley's  Case. 

29.  Devise  of  an  Estate  in  Fee  Simple. 

30.  Presumption  as  to  Conveyance  of  Fee. 

31.  Determinable  Fees. 

32.  Life  Estates. 

33.  Future  Estates. 

34.  Estates  upon  Condition,  or  Contingency. 

35.  Trusts. 

36.  Charities. 

37.  Particular  Words  and  Phrases  Commonly  Used  in  Wills  Defined. 

38.  Object  of  Bequest  or  Devise. 

39.  Object  of  Bequest  or  Devise — Concluded. 

40.  Residuary  Estate. 

§  25.    Will— Definitions. 

A  will  may  be  defined  as  the  legal  declaration  of  a 
person's  intention  respecting  the  disposition  of  his 
property  which  he  wills  to  be  performed  after  his 
death.1  It  is  also  called  a  "testament,"  and  the  party 
who  executed  it  a  "testator." 

A  joint  will  is  one  which  disposes  of  the  separate  es- 
tate or  estates  in  common  of  two  or  more  persons  by  the 
same  instrument.  In  so  far  as  the  individual  property 
interests  of  either  is  concerned,  it  is  as  valid  as  though 
in  the  ordinary  form,  and  on  the  death  of  one  of  the 
testators  is  entitled  to  probate  the  same  as  though  exe- 
cuted by  him  alone.2 

1  Cyclopedic  Law  Diet.;  Bouvier's  Law  Diet.  ~ 

2  Juel  v.  Hansen,  87  Neb.  567,  127  N.  W.  879. 

(37) 


§  26  PROBATE    AND    ADMINISTRATION.  [Chap.  2 

A  codicil  is  an  addition  to  or  a  correction  or  altera- 
tion of  a  will,  and  being  of  equal  importance  with  the 
original  instrument,  must  be  executed  in  the  same 
manner.3 

In  regard  to  the  manner  of  their  execution,  three 
kinds  of  wills  are  generally  recognized  by  law:  the 
ordinary  written  will  signed  by  the  testator  and  at- 
tested by  witnesses;  the  nuncupative  will,  which  is  an 
oral  disposition  of  one's  property,  made  by  a  person 
in  his  last  sickness,  by  a  soldier  in  actual  service,  or 
marine  on  shipboard,  in  the  presence  of  witnesses  and 
by  them  reduced  to  writing; 4  and  the  holographic  will, 
which  is  an  unwitnessed  instrument  entirely  in  the 
handwriting  of  the  testator.  Only  the  first  two  kinds 
of  wills  are  entitled  to  probate  in  Nebraska,  and  the 
same  is  the  case  in  Oregon.5 

§  26.    Elementary  rules  for  drafting  wills. 

In  drafting  a  will  the  scrivener  should  keep  in  mind 
the  elementary  principles  which  govern  its  construc- 
tion. The  court,  in  an  action  involving  the  construc- 
tion of  a  will,  will  "sit  in  the  seat  of  the  testator"  and 
ascertain  his  intention  from  the  instrument  itself,* 

8  Bouvier's  Law  Diet.;  Cyclopedic  Law  Diet. 

4  Godfrey  v.  Smith,  73  Neb.  756,  104  N.  W.  450;  Pollard  v.  McKen- 
ney,  69  Neb.  742,  96  N.  W.  679. 

5  Montague  v.  Schiefflin,  46  Or.  413,  80  Pac.  654. 

6  McCullough  v.  Valentine,  24  Neb.  215,  38  N.  W.  254;   St.  James 
Orphan  Asylum  v.  Selby,  60  Neb.  696,  84  N.  W.  273;  Yoessel  v.  Rieger, 
75  Neb.  180,  106  N.  W.  425;  Lesieur  v.  Sipperd,  84  Neb.  296,  121  N.  W. 
104;  Hay  wood  v.  Hay  wood,  92  Neb.   72,  137  N.  W.  984;   Shadden  v. 
Hembree,   17  Or.   14,   18  Pac.  572;   Portland  Trust  Co.  v.  Beattie,  32 
Or.  305,  52  Pae.  89;  Kaser  v.  Kaser,  68  Or.  158,  137  Pac.  187. 

(38) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  26 

and  act  cautiously  in  the  application  of  legal  principles 
deduced  from  apparently  analogous  cases.7 

Every  will,  to  a  certain  extent,  stands  by  itself.  The 
entire  instrument  is  considered  as  a  complete  whole, 
and  to  be  construed  in  such  a  manner  as  will,  if  pos- 
sible, give  effect  to  every  provision  therein  contained.8 

In  executing  his  will  a  testator  will  be  presumed  to 
have  had  in  mind  the  laws  of  his  state  regulating  the 
devolution  of  real  and  personal  property,9  unless  a 
contrary  intention  clearly  appears  from  the  instrument 
itself,10  and  it  will  be  construed  with  reference  to  such 
laws.11 

If  a  devise  is  given  to  take  effect  at  a  future  date, 
the  intermediate  estate  must  be  vested,  granted  to 
someone.  The  fee  and  the  right  to  possession  must 
both  be  always  vested  in  some  party.12 

A  devise  to  several  persons,  unless  otherwise  spe- 
cified, creates  a  tenancy  in  common,  instead  of  a  joint 
tenancy  as  at  common  law;  it  does  not  create  survivor- 
ship, and  the  gift,  unless  otherwise  disposed  of  in  case 
of  the  death  of  one  of  them,  will  pass  as  intestate  prop- 

7  Albin  v.  Parmele,  70  Neb.  740,  98  N.  W.  29;  Chick  v.  Ives,  2  Neb. 
Unof.  879,  90  N.  W.  751. 

8  Smith  v.  Bell,  6  Pet.  (U.  S.)  68;  Buerstetta  v.  Buerstetta,  83  Neb. 
287,  119  N.  W.  469;  Case  v.  Hagerty,  91  Neb.  746,  131  N.  W.  979; 
Jones  v.  Hudson,  93  Neb.  561,   141  N.  W.   141;   Jasper  v.  Jasper,  17 
Or.  590,  22  Pac.  152;  L.  0.  L.,  §  7347;  Lane  v.  Walker,  59  Or.  107,  115 
Pac.  300. 

9  Juel  v.  Hansen,  87  Neb.  567,  127  N.  W.  879;  Keith  v.  Eaton,  58 
Kan.  732,  51  Pac.  271. 

10  Harrison  v.  Nixon,  9  Pet.  (U.  S.)  483. 

11  Caulfield  v.  Sullivan,  85  N.  Y.  153. 

12  Yoesel  v.  Eeiger,  75  Neb.  180,  106  N.  W.  425. 

(39) 


§  27  PEOBATE    AND    ADMINISTRATION".  [Chap.  2 

P 

erty.13  If  the  gift  is  to  a  number  of  persons  who  com- 
pose a  class,  as  to  "my  children,"  those  who  compose 
the  class  on  the  date  of  the  testator's  death  will  take,14 
or  those  who  compose  it  at  the  date  the  gift  vests.15 

§  27.    Restrictions  on  devises  and  bequests. 

A  testator  does  not  have  an  absolute  right  to  devise 
and  bequeath  all  of  his  property  as  he  sees  fit.  He  is 
not  permitted  to  give  his  property,  or  any  part  of  it, 
for  the  promotion  of  any  cause  or  object  that  is  im- 
moral, illegal  or  contrary  to  the  public  policy  of  the 
state; 16  nor  can  he  so  dispose  of  his  estate  as  to  pre- 
vent the  vesting  of  a  full  and  complete  title  in  pos- 
session for  a  longer  period  than  a  life  or  lives  in  being 
and  twenty-one  years  thereafter.17  Several  life  estates 
or  estates  for  years  niay  be  created,  provided  the  title 
and  right  to  possession  vest  in  the  same  party  within 
twenty-one  years  from  the  death  of  a  designated  per- 
son, or  one  of  a  group  of  designated  persons.18 

A  married  person  cannot  bar  the  surviving  spouse 
of  the  right  to  take  under  the  statute  instead  of  under 
the  will,19  or  the  widow  from  the  allowance  for  her 
support,20  or  the  surviving  spouse  or  the  children  of 

is  Kaser  v.  Kaser,  68  Or.  153,  137  Pac.  187;  Smith  v.  Haynes,  202  Mass. 
531,  89  N.  E.  158;  Haug  v.  Schumaker,  166  N.  Y.  506,  60  N.  E.  245. 

14  Smith    v.    Haynes,    202    Mass.    531,    89    N.    E.    158;    Saunders    v. 
Saunders,  109  Va.  191,  63  S.  E.  410. 

15  Allison  v.  Allison,  101  Va.  537,  44  S.  E.  904. 

16  National  Christian  Assn.  of  HI.  v.  Tomas,  63  Neb.  585,  88  N.  W. 
688. 

17  Caddell  v.  Palmer,  1  Clark  &  F.  372 ;  Palmer  v.  Holford,  4  Kusa. 
403.     See  Buchanan  v.  Schulderman,  11  Or.  150,  1  Pac.  899. 

18  Madison  v.  Larmon,  170  111.  65,  48  N.  E.  556. 

19  Rev.  Stats.,  c.  17,  §  5,  [1269];  L.  O.  L.,  §  7303. 

20  Rev.  Stats.,  c.  17,  §  3,  [1267];  L.  O.  L.;  §  7349. 

(40) 


Cliap.  2]       PEEPARATIOX  AXD  DRAFTING  OF  WILLS.  §  28 

the  decedent  of  the  personal  belongings,  household 
furniture  and  exempt  property  given  them  by  statute.21 
A  devise  in  fee  cannot  be  given  on  condition  that 
the  property  shall  not  be  subject  to  the  debts  of  the 
devisee.22 

§  28.    Rule  in  Shelley's  case. 

In  one  of  the  oldest  reported  English  cases,23  the 
rule  was  laid  down  that  if  an  estate  for  life  or  any 
other  particular  estate  of  freehold  be  given  to  one,  and 
the  remainder  to  his  heirs,  the  first  taker  has  an  estate 
in  fee  simple.  It  has  been  universally  recognized  as 
a  rule  of  law  and  not  of  construction,  and  consequently 
in  force  in  all  common-law  states  unless  in  conflict 
with  the  statutes.  The  Nebraska  supreme  court  has 
never  passed  on  the  question,  but  has  held  in  a  case 
which  did  not  come  within  the  rule,  that  "it  exists  in 
this  state  in  a  restricted  and  qualified  form,  and  is 
enforced  in  those  instances  in  which  it  is  not  in  con- 
flict with  the  otherwise  expressed  intention  of  the 
instrument."  24  The  only  statute  having  a  bearing  on 
the  question  is  that  which  requires  that  all  instruments 
affecting  real  estate  be  construed  to  carry  into  effect 
the  intention  of  the  parties  so  far  as  such  intent  is  con- 
sistent with  the  rules  of  law.25  It  would  therefore 
appear  to  be  still  in  force  in  Nebraska. 

21  O'Shea  v.  Bruning,  85  Neb.  156,  521,  124  N.  W.  114;  Fletcher  v. 
Fletcher,  83  Xeb.  156,  119  N.  W.  232;  Caster  v.  Gaster's  Estate,  92 
Neb.  6,  137  N.  W.  900;  L.  O.  L.,  §§  1233,  7349. 

22  Loosing  v.  Loosing,  85  Neb.  66,  122  N.  W.  707. 

23  1  Coke,  104a,  76  Eng.  Rep.  224. 

24  Albin  v.  Parmele,  70  Neb.  740,  98  N.  W.  29. 

25  Eev.  Stats.,  c.  68,  §  9,  [6195J. 

(41) 


§§29,30  PEOBATE    AND    ADMINISTRATION.  [Chap.  2 

In  Oregon  it  is  provided  by  a  statute  that  an  estate 
for  life  with  remainder  to  heirs,  children  or  right  heirs, 
gives  a  life  estate  to  the  first  taker  and  a  fee  in  the 
children,26 

§  29.    Devise  of  an  estate  in  fee  simple. 

The  common-law  presumption  that  a  life  estate  was 
intended  to  be  conveyed  by  will  unless  words  of  in- 
heritance or  words  of  like  import  were  used  has  been 
changed  by  statute.27  The  devise  of  an  "estate," 
"estate  property,"28  "real  effects,"29  right,  title  or 
interest  in  described  lands,  or  of  lands  subject  to  con- 
ditions that  cannot  be  performed  except  by  the  owner 
of  the  fee,  convey  the  entire  interest  of  the  decedent.30 

§  30.    Presumption  as  to  conveyance  of  fee. 

Every  devise  of  lands  will  be  construed  to  convey 
all  the  estate  of  the  devisor  therein  which  he  could 
lawfully  devise,  unless  it  shall  clearly  appear  by  the 
will  that  he  intended  to  convey  a  lesser  estate  or  inter- 
est,31 including  standing  crops,  unless  reserved.32  The 
intent  to  convey  a  lesser  estate  must  clearly  appear, 
and  any  doubt  will  be  solved  in  favor  of  a  fee.33 

26  L.  O.  L.,  §  7343.  ' 

27  Eev.  Stats.,  c.  68,   §6,   [6192];  Little  v.  Giles,  25  Neb.  313,  41 
N.  W.  186;  L.  O.  L.,  §  7103;  Irvine  v.  Irvine  (Or.),  136  Pae.  19;  Lane 
v.  Walker,  59  Or.  95,  114  Pac.  294. 

28  Plat  v.  Sinton,  37  Ohio  St.  353. 

29  Hogan  v.  Jackson,  Cowp.  299. 

30  Sharp  v.  Sharp,  6  Bing.  634. 

81  Eev.  Stats.,  c.  17,  §  23,  [1287];  L.  O.  L.,  §  7344;  Lane  v.  Walker, 
59  Or.  103,  115  Pac.  300;  Watson  v.  McClinch,  57  Or.  467,  110  Pac. 
484;  Irvine  v.  Irvine  (Or.),  136  Pac.  19. 

32  In  re  Estate  of  Pope,  83  Neb.  723,  120  N.  W.  191;  In  re  Estate 
of  Anderson,  83  Neb.  8,  118  N.  W.  1108. 

33  Little  v.  Giles,  25  Neb.  313,  41  N.  W.   186;   Chambers  v.  Shaw, 
52  Mich.  18,  17  N.  W.  223;  Dew  v.  Kuehn,  64  Wis.  300,  25  N.  W. 

(42) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  30 

In  case  the  different  clauses  of  the  will  appear  to 
be  in  conflict,  as  the  devise  of  an  estate  in  fee  in  earlier 
paragraphs  with  conditions  indicating  a  lesser  estate 
in  later  ones,  such  subsequent  provisions  may  be  opera- 
tive to  define  the  estate  given,  and  show  that  what 
without  them  would  be  a  fee  is  actually  a  devise  of 
a  lesser  estate.34  The  general  rule  is  that  a  devise  in 
fee  will  not  be  cut  down  to  a  lesser  estate  by  later 
clauses  in  a  will,  unless  such  intent  clearly  appears 
from  the  terms  of  the  instrument.35 

Under  these  rules  a  disposition  of  property  so  fre- 
quently occurring  in  wills  of  a  devise  in  fee  accom- 
panied by  an  expression  of  confidence  that  the  devisee 
will  provide  for  distribution  of  the  same  to  the  chil- 
dren of  the  devisor  is  insufficient  to  cut  down  the  estate 
first  granted,36  and  a  devise  of  a  homestead  to  the 
widow  followed  by  a  direction  that  at  her  death  it  be 
"divided  among  our  children"  will  be  construed  the 
same  way,37  while  a  devise  of  all  one's  property  with 
entire  control  during  the  lifetime  of  the  devisee  con- 
veys only  a  life  estate.38 

212;  Bobbins  v.  Bobbins,  10  Ky.  Law  Bep.  209,  9  S.  W.  254;  Helmer 
T.  Shoemaker,  22  Wend.  (N.  Y.)  137;  Van  Horn  v.  Campbell,  100 
N.  Y.  287;  Schnitter  v.  McManaman,  85  Neb.  337,  123  N.  W.  300. 

34  Loosing   v.  Loosing,   85   Neb.   66,   122  N.   W.  707;   In   re  Sheets' 
Estate,   52   Pa.   263;    Schaumanz   v.   Goss,    132   Mass.    141;    Bhodes   T. 
Bhodes.  137  Mass.  343;  Wallace  v.  Hawes,  79  Me.  177,  8  Atl.  885. 

35  Spencer  v.  Scoville,  70  Neb.  87,  98  N.  W.  29;  Martley  v.  Martley, 
77  Neb.  183,  108  N.  W.  979;  Schnitter  v.  McManaman,  85  Neb.  337, 
123  N.  W.  299;  Irvine  v.  Irvine   (Or.),  136  Pac.   19. 

36  Tabor  v.  Tabor,  65  Wis.  313,  55  N.  W.  702;  Kaufman  v.  Brecken- 
bridge,  117  111.  305,  7  N.  E.  66. 

37  Juel  v.  Hansen,  87  Neb.  567,  127  N.  W.  879. 

38  Schimpf  v.  Bhodewald,  62  Neb.  105,  86  N.  W.  908. 

(43) 


§§31,32  PROBATE    AND    ADMINISTRATION.  [Chap.. 2 

A  power  of  sale  added  to  a  life  estate  will  not  convert 
it  into  a  fee  simple.39 

§  31.    Determinable  fees. 

Where  the  entire  estate  of  the  testator  in  the  prop- 
erty or  an  estate  in  fee  simple  is  devised,  accompanied 
by  a  limitation,  the  effect  of  which  would  be  to  termi- 
nate the  interest  of  the  devisee  upon  the  happening 
of  the  particular  event,  the  devisee  takes  a  base  or 
determinable  fee.  When  the  event  which  terminates 
the  estate  occurs,  the  fee  reverts  to  the  heirs  or  passes 
to  other  devisees.40  Until  the  happening  of  the  condi- 
tion which  limits  the  estate,  a  determinable  fee  is  prac- 
tically an  estate  in  fee  simple.41 

§  32.    Life  estates. 

In  order  to  devise  a  life  estate  it  is  necessary  that 
apt  words  be  used  for  that  purpose,  or  the  entire  will 
show  an  intent  to  convey  the  lesser  estate,  on  account 
of  the  presumption  of  law  being  against  it.  A  gift 
of  the  use  or  possession  of  described  lands,  or  of  per- 
sonal property  for  life,  creates,  in  the  case  of  lands, 
an  estate  with  all  the  rights  appertaining  thereto,  and 
not  a  mere  charge  on  the  property,42  and  the  same  is 
true  of  the  gift  of  the  sole  use  of  property,  with  gift 

39  Loosing  v.  Loosing,  85  Neb.  66,  122  N.  W.  707;  Little  v.  Giles, 
25  Neb.  313,  41  N.  W.  186;  Savage  v.  Savu,-3,  51  Or.  167,  94  Pac.  182. 

40  Little  v.  Giles,  25  Neb.  313,  41  N.  W.  186;  Kobert  v.  Lewis,  153 
U.  S.  367,  15  Sup.  Ct.  Eep.  945. 

41  2  Bl.  Com.  109. 

42  Crandell  v.  Baker,  8  N.  D.  263,  68  N.  W.  347;  Lewis  v.  Palmer, 
48  Conn.  454;  Nelson  v.  Nelson,  18   Ohio  St.  282. 

(44) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  33 

over  in  case  of  the  death  of  the  devisee  or  legatee  with- 
out issue.43 

The  life  tenant  is  required  to  pay  the  taxes,44  and, 
as  a  general  rule,  takes  an  estate  subject  to  impeach- 
ment for  waste,45  but  where  the  gift  is  of  the  "use  and 
full  control"  of  lands,  he  is  only  liable  to  wanton  injury 
to  the  estate.46 

The  beneficiary  of  a  life  interest  in  personal  prop- 
erty is  entitled  to  its  possession,  unless  the  gift  is  to 
a  trustee  for  his  use,  and  cannot  be  compelled  to  accept 
the  present  value  of  his  interest.47  He  kas  the  right 
to  change  the  character  of  the  investments  when  con- 
sistent with  good  business  management,48  and  should 
keep  the  principal  sum  unimpaired.49 

A  bequest  for  life  followed  by  a  gift  of  the  remainder 
of  the  personal  property  gives  the  first  legatee  the 
right  to  the  principal,  but  that  remaining  undisposed 
of  passes  to  the  later  named  legatee.50 

§  33.,   Future  estates. 

The  right  of  a  testator  to  create  an  estate  which  will 
vest  in  both  interest  and  possession  at  a  future  day 
has  been  universally  recognized.  Such  estate,  except 
there  be  an  executory  devise,  necessarily  requires  the 

43  Love  v.  Walker,  58  Or.  95,  115  Pac.  296. 

44  Disher  v.  Disher,  45  Neb.  100,  63  N.  W.  388;  Speich  v.  Tierney, 
56  Neb.  514,  76  N.  W.  1090;  King  v.  Boetcher  (Neb.),  147  N.  W.  836. 

45  St.   Paul   Trust   Co.   v.   Mintzer,   65   Minn.    124,   67   N.   W.   657; 
Williamson  v.  Jones,  42  W.  Va.  563,  27  S.  E.  411. 

40  Wiley  v.  Wiley,  1  Neb.  Unof.  350,  95  N.  W.  702. 

47  Armiger  v.  Reitz,  91  Md.  334,  46  Atl.  990. 

48  Sutphen  v.  Ellis,  35  Mich.  456. 

49  Chase  v.  Howie,  64  Kan.  320,  67  Pac.  822. 

60  Crandell  v.  Nichols,  93  Neb.  80,  139  N.  W.  719. 

(45) 


§  33  PROBATE    AND    ADMINISTRATION.  [Chap.  2 

creation  of  two  estates:  the  estate  in  fee  and  a  lesser 
estate,  which  may  be  either  an  estate  for  years  or  a 
life  estate.  The  remainder  vests  at  the  same  time  as 
the  life  estate,  unless  it  be  dependent  upon  conditions 
or  limitations  occurring  during  the  existence  of  the 
preceding  estate,  and  although  the  remainderman  can- 
not enter  into  the  possession  of  the  property  until  the 
termination  of  the  lesser  estate,  the  remainder  is  in 
him,  goes  to  his  heirs  or  devisees  if  he  dies  before  com- 
ing into  possession,  may  be  sold,  and  is  subject  to  his 
debts  the  same  as  any  other  part  of  his  property.51 

The  law  favors  the  vesting  of  titles  rather  than  hold- 
ing them  in  abeyance,  and  a  remainder  will  be  held 
as  vested  rather  than  contingent,  if  consistent  with  the 
terms  of  the  will.52 

An  executory  devise  is  a  gift  of  an  estate  or  interest 
in  lands,  not  necessarily  preceded  by  an  estate  of  free- 
hold, not  vesting  at  the  death  of  the  devisor,  but  de- 
pendent on  some  limitation  or  contingency,53  which 
must  determine  within  the  rule  against  perpetuities.54 

A  testator  may  also  give  to  the  devisee  of  a  life  es- 
tate the  power  to  designate  the  parties  who  take  the 
remainder  or  their  shares  therein.55  A  general  power 
gives  unlimited  right  of  disposition.56  One  limited  to 
certain  beneficiaries  or  class  of  beneficiaries  cannot  be 

51  Shackley  v.  Homer,  87  Neb.  146,  127  N.  W.  145;  Kerlin's  Lessee 
v.  Bull,  ]  Dall.  175. 

52  Clark  v.  Fleischman,  81  Neb.  445,  116  N.  W.  190. 

83  Burleigh  v'.  dough,  52  N.  H.  567;  Patterson  v.  Ellis,  11  Wend. 
(N.  Y.)  259. 

54  Patterson  v.  Ellis,  11  Wend.   (N.  Y.)   259. 

55  Burbank  v.  Sweeney,  161  Mass.  490,  37  N.  W.  669. 
58  1  Sugden  on  Powers,  495. 

(46) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  34 

extended  to  include  others,  and  will  be  strictly  con- 
strued.57 Where  the  parties  are  designated,  the  donee 
cannot  deprive  them  of  their  property  by  failure  to 
appoint,  and  in  such  cases  they  take  in  equal  shares  on 
the  termination  of  the  prior  estate.58 

§  34.    Estates  upon  condition  or  contingency. 

Property  may  be  devised  or  bequeathed  upon  a  con- 
dition precedent.  In  such  case  a  substantial  perform- 
ance of  the  terms  of  the  conditions  is  required,  and 
ignorance  of  them  will  not  excuse  the  devisee  or  legatee 
from  carrying  them  out.  On  failure  of  the  condition 
the  gift  passes  into  the  residuary  estate,  if  there  be 
one,  or  to  the  heirs.59 

Devises  or  bequests  may  also  be  on  conditions  sub- 
sequent, provided  such  conditions  are  reasonable  and 
lawful,  and  a  full  compliance  with  them  is  also  neces- 
sary for  the  vesting  of  the  estate.60 

A  condition  attached  to  a  devise  of  an  estate  in  fee 
simple,  that  the  devisee  shall  not  sell  or  encumber  the 
property,  is  contrary  to  public  policy  and  void,61  but 
may  be  imposed  upon  an  estate  for  years,62  or  a  life 
estate.63  Entailed  estates  have  never  been  recognized 
in  Nebraska  or  Oregon.64 

57  Parks  v.  American  Home  Missionary  Society,  62  Vt.  19,  20  Atl. 
107;  Loring  v.  Blake,  98  Mass.  253. 

58  Loosing  v.  Loosing,  85  Neb.  66,  122  N.  W.  705. 

59  Fisher  v.  Fisher,  90  Neb.  145,  113  N.  W.  1004. 

60  Smith  v.  Smith,  64  Neb.  673,  90  N.  W.  560. 

61  Spencer  v.  Scoville,  70  Neb.  87,  96  N.  W.  1016;  Loosing  v.  Loos- 
ing, 85  Neb.  66,  122  N.  W.  707. 

62  Weller  v.  Noffsinger,  57  Neb.  456,  77  N.  W.  1075. 

63  Albin  v.  Parmele,  70  Neb.  740.  98  N.  W.  29. 

64  Sowland  v.  Warren,  10  Or.  129. 

(47) 


§  35  PROBATE    AND   ADMINISTRATION.  [Chap.  2 

A'  condition  that  a  devisee  shall  take  and  thereafter 
be  known  by  a  certain  name  is  valid.65 

Where  a  gift  is  made  to  a  person  absolutely,  with  a 
condition  that  in  case  of  his  death  the  property  shall 
pass  to  another,  the  contingency  referred  to  is  the 
death  of  the  first  taker  before  the  death  of  the  testator, 
but  special  circumstances  may  prevent  its  applica- 
tion.66 In  the  case  of  legacies,  the  contingency  is  the 
death  of  the  first  taker  before  the  time  for  payment  or 
distribution.67 

The  rule  that  the  failure  of  a  limitation  over  by  way 
of  an  executory  devise  attached  to  a  devise  in  fee  vests 
the  entire  estate  in  the  devisee  of  the  fee,  subject  to 
the  precedent  estate,  if  any,  gives  a  like  estate  to  his 
heirs  on  failure  of  the  limitation.68 

§  35.    Trusts. 

Any  trust  in  either  real  estate  or  personal  property 
which  is  capable  of  being  executed  without  conflicting 
with  the  public  policy  of  the  state  may  be  created  by 
will.69 

65  Smith  v.  Smith,  64  Neb.  673,  90  N.  W.  560. 

66  Willets  v.  Conklin,  88  Neb.  805,  130  N.  W.  757;  Schnitter  v.  Mc- 
Manaman,  85  Neb.  337,  123  N.  W.  296. 

67  Hawkins  on  Wills,  2d  ed.,  254. 

68  Yoesel  v.  Reiger,  75  Neb.  180,  106  N.  W.  428.     In  this  case  there 
was  a  devise  to  A.,  B.  and  C.  in  fee,  subject  to  an  estate  for  years  in  A., 
with  limitation  over  to  the  survivors,  or  their  heirs  in  case  of  the  death 
of  either  devisee  during  the  term  of  A.     B.  died  within  the  term  leav- 
ing issue.     The  court  held  that  on  the  termination  of  the  estate  for 
years,  the  heirs  of  the  issue  of  B..  such  issue  having  died  in  the  mean- 
time, took  the  estate  in  fee  which  would  have  vested  in  B.  had  he 
survived. 

69  McCleary  v.  Allen,  7  Neb.  21;  Hawke  v.  Enyart,  30  Neb.  149, 
46  N.  W.  492. 

(48) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  35 

The  interest  of  a  trustee  who  has  no  other  duties 
to  perform  than  merely  hold  the  title  is  a  passive  trust. 
The  cestui  que  trust  may  compel  such  trustee  to  de- 
liver the  estate  to  him  or  execute  conveyances  to  such 
person  or  persons  as  he  may  direct  To  make  a  trust 
valid  the  trustee  must  have  some  actual  duties  and 
responsibilities.70 

A  spendthrift  trust  may  be  created,  and  during  the 
lifetime  of  the  cestui  que  trust  the  property  held  not 
liable  for  his  debts,  or  subject  to  alienation  by  him, 
and  the  trustee  may  be  given  a  discretion  as  to  time 
and  amount  of  payments.71  This  is  the  usual  plan  of 
preventing  creditors  from  enforcing  their  demands 
against  a  beneficiary  and  the  only  one  that  is  effectual. 

A  constructive  trust  may  be  imposed  by  parol  upon 
a  devise,  and  the  devisee  required  to  account  to  the 
i  :stui  que  trust.12  In  the  above  case,  the  testator  at 
the  time  of  the  execution  of  the  will  made  certain  re- 
quests to  the  principal  beneficiary  concerning  the  dis- 
position to  be  made  by  her  of  the  income  of  the  estate 
which  was  devised  her  to  which  she  assented. 

The  beneficiary  or  beneficiaries  of  any  trust  not  of 
a  charitable  nature  must  be  clearly  and  definitely  des- 
ignated, the  property  subjected  described  with  reason- 
able certainty,  and  the  manner  in  which  it  is  to  be 
carried  out  plainly  defined.73 

70  Hill  v.  Hill,  90  Neb.  43,  132  N.  W.  739;  Henderson  v.  Adams,  15 
Utah,  39,  48  Pac.  398. 

71  Weller   v.   Nofsinger,   57   Neb.   455,   77   N.   W.   1075;    Mattison   T. 
Mattison,  53  Or.  254,  100  Pac.  4. 

72  Smullin  v.  Wharton,  73  Neb.  677,  112  N.  W.  622,  106  N.  W.  577, 
103  N.  W.  288;  83  Neb.  228,  119  N.  W.  773. 

73  Smullin  v.  Wharton,  73  Neb.  667,  103  N.  W.  288. 

4  —  Pro.  Ad.  (49) 


^> 


§  36  PROBATE   AND   ADMINISTRATION.  [Chap.  2 

§  36.    Charities. 

There  are  no  statutory  restrictions  in  this  state  on 
bequests  or  devises  to  public  charities.  Such  charities 
include  gifts  to  municipalities  for  all  classes  of  public 
improvements,74  for  the  relief  of  poverty  and  sick- 
ness,75 for  the  assistance  of  widows,  orphans  and  chil- 
dren,76 gifts  for  schools  and  colleges,77  or  for  promo- 
tion and  general  diffusion  of  useful  knowledge,  for 
churches,78  as  well  as  for  missionary  and  charitable 
purposes. 

Such  gifts  may  be  made  to  incorporated  associations 
or  in  trust  for  denned  purposes.  The  beneficiaries 
need  not  be  named  with  the  same  degree  of  exactness 
as  in  the  case  of  other  trusts.  The  trustee  may  be 
given  power  to  select  the  objects  of  the  charity  and 
devise  a  plan  for  the  application  of  the  funds.  The 
exercise  of  the  discretion  vested  in  him  is  deemed  the 
act  of  the  will  of  the  testator.79  The  gift  may  be  of  a 
base  fee  determinable  upon  condition,  or  the  property 
placed  in  the  hands  of  trustees  for  the  use  of  the 
charity.80  In  the  latter  case  the  officers  of  a  bank  were 
deemed  proper  trustees  of  a  bequest  of  shares  of  its 

74  Coggeshall  v.  Pelton,  7  Johns.  Ch.  (N.  Y.)  292;  Burbank  v.  Bur- 
bank,  152  Mass.  254,  25  N.  E.  427. 

75  St.  James  Orphan  Asylum  v.  Selby,  60  Neb.  796,  84  N.  W.  273; 
Derby  v.  Derby,  4  E.  I.  414. 

76  Camp  v.  Crocker,  54  Conn.  21,  5  Atl.  604. 

77  Vidal  v.  Philadelphia,  2  How.  (U.  S.)   127. 

78  Royer  v.  Potter,  94  Neb.  280,  143  N.  W.  299. 

79  St.  James  Orphan  Asylum  v.  Selby,   60  Neb.  796,  84  N.  W.  273, 
75  Neb.  591,  106  N.  W.  604;  In  re  Nilson's  Estate,  81  Neb.  809,  11€ 
N.  W.  971. 

80  Royer  v.  Potter,  94  Neb.  280,  143  N.  W.  299. 

(50) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  37 

stock  to  a  church,  the  income  to  be  used  for  religious 
purposes. 

The  most  essential  element  of  a  bequest  or  devise 
to  a  charity  is  a  sufficient  definition  of  its  objects  and 
purposes  and  designation  of  its  beneficiaries;  if  to  trus- 
tees for  the  purpose  of  establishing  a  charity,  it  should 
state  the  objects  and  purposes  of  the  charity.  It  may 
contain  directions  for  the  investment  of  funds  and 
direct  how  they  shall  be  used.  The  details  may  be 
left  to  the  trustees,  and  it  will  be  upheld  if  sufficiently 
specific  to  establish  the  charity  and  place  the  general 
management  and  control  in  the  hands  of  the  trustees.81 

§  37.  Particular  words  and  phrases,  commonly  used 
in  wills,  defined. 

The  words  "lands,  tenements,  and  hereditaments" 
are  the  most  comprehensive  of  any  applicable  to  real 
estate.  They  include  every  species  of  realty,  cor- 
poreal and  incorporeal,  leasehold  and  reversionary 
interests.82 

The  words  "estate"  and  "property"  are  the  most 
comprehensive  terms  that  can  be  used  in  disposing  of 
a  man's  possessions  by  will.  They  are  practically 
identical  in  their  meaning,  and  either,  when  used  with- 
out qualifying  expressions,  include  everything  that  be- 
longed to  the  testator,  both  realty  and  personalty.83 

81  In  re  Creighton's  Estate,  91  Neb.  654,  136  N.  W.  1001;  St.  James 
Orphan   Asylum   v.   Selby,   60   Neb.   796,  84   N.  W.   273;    75   Neb.   591, 
106  N.  W.  604;  Chick  v.  Ives,  2  Neb.  Unof.  879,  90  N.  W.  751. 

82  3  Kent,  Com.,  13th  ed.,  401;   1  Jarman,  Wills,  177. 

83  Deering  v.   Tucker,   55   Me.   284;   Jackson   v.   Housel,   17  Johns. 
(N.   Y.)    281;    Spencer   v.   Higgins,   22   Conn.   529;    Monroe   v.   Jones, 
8  R.  L   526. 

(51) 


§  37  PROBATE    AND   ADMINISTRATION.  [Chap.  2 

The  word  ''house"  is  generally  construed  as  synony- 
mous with  the  common-law  "messuage,"  including  the 
lot  upon  which  the  building  stands,  barns,  outbuild- 
ings, gardens  and  lawns  appurtenant  thereto.84 

A  "farm"  is  the  entire  tract  or  tracts  of  land 
owned,  used  and  occupied  as  such  by  the  testator  as 
proprietor.85 

"Homestead,"  used  in  referring  to  a  farm,  means 
the  entire  farm  occupied  as  such  by  the  testator,  and 
is  not  limited  to  the  legal  homestead  defined  by 
statute.86 

A  devise  of  the  "rents  and  profits"  of  lands  has  been 
held  to  pass  the  title  to  the  laribl  itself,  where  other 
parts  of  the  will  indicate  an  undoubted  intention  of  the 
testator  to  give  the  devisee  such  power  over  the  land 
as  would  require  him  to  possess  the  fee.87 

"Property,"  when  used  in  connection  with  the  words 
"money  and  effects,"  by  reason  of  association  with 
such  other  words,  is  limited  to  personalty  alone,  and 
would  not  include  realty.88 

"Goods,  chattels  and  effects"  include  the  entire  per- 
sonal estate,  but  if  the  words  are  goods,  chattels  and 
effects  in  a  particular  place,  choses  in  action  would  not 
be  conveyed,  for  they  have  no  locality.89 

84  Bennet  v.  Bittle,  4  Rawle  (Pa.),  339. 

85  Aldrich  v.  Gaskill,  10  Cush.  (Mass.)  155. 

86  Kennedy   v.   Kennedy,   105   111.   350. 

87  Bowen  v.  Payton,  14  R.  I.  257;  Ryan  v.  Allen,  120  111.  648,  12 
N.  E.  65. 

88  Brawley  v.  Collins,  88  N.  C.  605. 

89  Stuckey  v.  Stuckey,  1  Hill  Eq.  (S.  C.)  309;  Penniman  v.  French, 
17   Pick.    (Mass.)   404. 

(52) 


Chap.  2]   PREPARATION  AXD  DRAFTING  OF  WILLS.     §  37 

"Effects"  include  personalty  only,  and  cannot  be 
broadened  to  embrace  realty,  unless  an  intention  to 
that  effect  clearly  appears  in  the  will.90 

"Money"  is  not  limited  to  gold,  silver  and  paper  cur- 
rency, but  includes  bank  deposits,  both  general  time 
certificates  and  savings  bank  deposits.91  A  bequest  of 
"all  my  moneys  after  paying  my  just  debts,"  in  a  will 
containing  no  residuary  clause,  has  been  extended  to 
include  deposits  in  a  savings  bank  and  stock  of  a  cor- 
poration, thus  making  the  word  almost  synonymous 
with  "personal  estate."92 

The  words  "keep,  care  for  and  support,"  as  ap- 
plied to  a  person,  mean  the  furnishing  of  room,  board, 
clothing,  medical  services  when  needed,  personal  neces- 
sities, and  such  care  and  ministrations  as  the  circum- 
stances of  the  party  demand.93 

"Personal  property"  sometimes  has  in  a  will  a  dif- 
ferent meaning  from  that  given  to  it  in  general.  It 
may  be  limited  in  its  meaning  where  a  use  of  it  in  its 
broadest  signification  would  defeat  the  evident  intent 
of  the  testator.94  A  bequest  of  "personal  property," 
with  a  direction  to  the  legatee  to  sell  the  same,  would 
not  generally  include  bonds,  notes,  mortgages,  or 
choses  in  action,  as  such  property  is  not  considered 

»o  Doe  d.  Hick  v.  Bring,  2  Maule  &  S.  448. 

91  Paup   v.    Sylvester,   22   Iowa,   375;   Dabney   v.   CottrelPs   Admx., 
9   Gratt.    (Va.)    572. 

92  Jenkins  v.  Fowler,  63  N.  H.  244;  Decker  v.  Decker,  121  111.  341, 
12  N.  E.  750. 

93  Fisher  v.  Fisher,  80  Neb.  145,  113  N.  W.  1004. 

94  Kempf's  Appeal,  53  Mich.  352,  19  N.  W.  31;  Benton  v.  Benton, 
63   X.  H.  289. 

(53) 


§  38  PEOBATE    AND   ADMINISTRATION.  [Chap.  2 

subject  to  sale  by  direction  of  a  testator  after  vesting 
in  the  legatee.95 

§  38.    Object  of  bequest  or  devise. 

The  term  " children"  as  used  in  a  will  is  generally 
limited  to  the  direct  issue  of  the  testator,96  and  a  gift 
to  children  cannot  be  extended  to  include  the  children 
of  a  child  not  living  at  the  date  of  the  execution  of 
the  will.97  Where  there  are  no  persons  strictly  an- 
swering to  that  class,  grandchildren  may  be  allowed 
to  take,  that  being  the  evident  intent  of  the  testator.98 

A  gift  to  nephews  and  nieces  includes  only  those  re- 
lated by  blood,  and  not  by  marriage  only,99  and  not 
great-nephews  and  great-nieces,100  unless  a  contrary  in- 
tention appears  in  the  will,  taken  as  a  whole. 

Brothers,  sisters  and  cousins  include  those  of  the 
half  as  well  as  the  whole  blood.101 

The  term  "issue"  is  a  word  of  very  extensive  mean- 
ing, including  all  the  lineal  descendants.102  It  may, 

95  German   v.   German,    27    Pa.    116;    Alexander    v.    Alexander,   41 
N.  C.  230. 

96  Sydnor  v.  Palmer,  29  Wis.  226;  Brown  v.  Brown,  71  Neb.  200, 
98  N.  W.  718;  Cummings  v.  Plummer,  94  Ind.  403;  Webb  v.  Hitchins, 
105  Pa.  91;  Castner's  Appeal,  88  Pa.  478;   Schaffer  v.  Eneu,  54  Pa. 
304;   Osgood  v.  Loverig,  33  Me.  469. 

07  Bollinger  v.  Knox,  3  Neb.  Unof.  811,  92  N.  W.  994. 

98  Ewing's  Heirs  v.  Handley's  Exrs.,  4  Litt.  (Ky.)  346;  In  re  Utz's 
Estate,  43  Cal.  201;  Beebe  v.  Estabrook,  79  N.  Y.  246;  In  re  Schedel's 
Estate,  73  Cal.  594,  15  Pac.  297. 

99  Campbell  v.  Clark,  64  N.  H.  328,  10  Atl.  702;   Green's  Appeal, 
42  Pa.  30. 

100  Campbell  v.  Clark,  64  N.  H.  328,  10  Atl.  702. 

101  Luce  v.  Harris,  79  Pa.  432. 

102  Hall  v.  Hall,  140  Mass.  267,  2  N.  E.  700;  Wistar  v.  Scott,  105 
Pa.   200. 

(54) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  39 

by  reason  of  the  connecting  sentences,  be  limited  to 
children.  Whenever  the  legatees  are  described  as 
"issue,"  children,  sons  or  daughters,  only  those  of 
legitimate  birth  are  meant.103  If  the  parents  are  dead, 
leaving  no  legitimate  children,  or  the  will  shows 
plainly  that  illegitimate  children  were  intended,  they 
will  take.104 

"An  'heir'  is  he  upon  whom  the  law  casts  the  estate 
immediately  on  the  death  of  the  ancestor. ' ' 105  As  used 
in  a  will,  it  is  strictly  a  word  of  limitation.  A  bequest 
of  property  to  one's  heirs  is  to  those  who  would  be 
entitled  thereto  under  the  statutes  of  distribution  and 
descent; 106  and  the  same  is  true  of  a  devise  of  real 
property.107  A  devise  to  "heirs"  or  "heirs  at  law" 
includes  those  only  who  are  heirs  at  the  time  of  the 
death  of  the  decedent.108 

§  39.    Object  of  bequest  or  devise— Concluded. 

The  terms  "next  of  kin,"  "nearest  of  kin,"  and 
"nearest  of  blood"  relations  have  substantially  the 
same  meaning,  and  primarily  indicate  the  nearest  de- 

103  Collins  v.  Hoxie,  9  Paige   (N.  Y.),  88;  Appel  v.  Byers,  98  Pa. 
479;  Hughes  v.  Knowlton,  37  Conn.  429. 

104  Gelston   v.  Shields,  16  Hun   (N.  Y.),  143;   Gardner  v.  Heyer,  2 
Paige  (N.  Y.),  11;  Stewart  v.  Stewart,  31  N.  J.  Eq.  398. 

105  2  Bl.  Com.  201. 

106  Ferguson   v.  Stuart's  Exrs.,  14  Ohio,  140;  Tillman  v.  Davis,  95 
N.  Y.   17;   Hascall  v.   Cox,  49  Mich.   435,   13   N.   W.   807;    Corbitt   v. 
Corbitt,  54  N.   P.   117. 

107  Ireland  v.  Parmenter,  48  Mich.  631,  12  N.  W.  883;  Loring  v.  Thorn- 
dike,   5   Allen    (Mass.),  260. 

108  Hill  v.  Hill,  90  Neb.  43,  132  N.  W.  738;  Minot  v.  Tappan,  122 
Mass.  535;   Stokes  v.  Van  Wyck,  83  Va.  724,  3  S.   E.  387;   Dove  v. 
Ton,  128  Mass.  38. 

(55) 


§  39  PROBATE    AND   ADMINISTRATION.  [Chap.  2 

gree  of  consanguinity,  and  they  are  perhaps  more  fre- 
quently used  in  this  sense  than  in  any  other.109 

The  word  "relations,"  when  used  in  a  will,  is  ordi- 
narily construed  as  including  relatives  by  consanguin- 
ity, and  excluding  relatives  by  affinity,  unless  a  con- 
trary intention  is  manifested.110  It  is  a  rather  vague 
term,  and  generally  means  those  who  would  be  entitled 
to  the  property  were  the  decedent  intestate.111  A  hus- 
band is  not  next  of  kin  or  heir  or  relative  of  the  wife, 
nor  the  wife  of  the  husband.112  The  same  rule  for 
ascertaining  who  such  parties  are  applies  as  for  deter- 
mining who  are  the  heirs  of  the  decedent.113 

The  term  "legal  representatives"  has  been  construed 
to  mean  lawful  heirs,  and  thus  to  entitle  such  repre- 
sentatives to  the  share  which  their  ancestors  would 
have  taken,  had  they  lived,  in  the  estate.114 

The  term  "family"  includes  a  person's  wife  and 
children 115  living  in  the  same  household  with  him. 
The  meaning  of  the  term  must  usually  be  determined 
from  the  will,  taken  as  a  whole.  It  may  include  those 
not  living  under  the  same  roof,116  and  those  living  with 

109  Swasey   v.   Jaques,   144   Mass.   135,   10   N.   E.   758;   Redmond  v. 
Burroughs,   63   N.   C.   242;   Wright   v.  Methodist   Episcopal   Church,   1 
Hoff.   Ch.    (N.   Y.)    202. 

110  Bennett  v.  Van  Riper,  47  N.  J.  Eq.  563,  22  Atl.  1055;  Esty  v. 
Clark,   101   Mass.   36. 

l"  Varrell   v.   Wendell,  20  N.  H.  435. 

112  Warren  v.  Englehart,  13  Neb.  283,  10  N.  W.  401;  Appeal  of 
Dodge,  106  Pa.  216;  Cleaver  v.  Cleaver,  39  Wis.  96;  Wilkins  v.  Ordway, 
59  N.  H.  378. 

"3  Dove  v.  Torr,  128  Mass.  38;  Letchworth's  Appeal,  30  Pa.  1/5; 
Welsh  v.  Crater,  32  N.  J.  Eq.  177. 

114  Marsh  v.  Marsh,  92  Neb.  189,  137  N.  W.  1122;  Rivenett  v.  Bour- 
quin.  53  Mich.  10,  18  N.  W.  537;  Heath  v.  Bancroft,  49  Conn.  220. 

us  Bradlee  v.  Andrews,  137  Mass.  50. 

us  Proctor  v.  Proctor,  141  Mass.  165,  6  N.  E.  849. 

(56) 


Chap.  2]       PREPARATION  AND  DRAFTING  OF  WILLS.  §  40 

him,  dependent  upon  him  for  support,  who  are  not  his 
children. 

A  gift  to  a  class  as  issue,  children,  grandchildren, 
nephews,  or  nieces,  whether  of  the  testator  or  of  some 
other  person,  is  to  those  who  comprise  the  class  at  the 
death  of  the  testator,  and,  unless  otherwise  provided, 
the  law  favors  a  distribution  per  capita  rather  than 
per  stirpes;117  and  this  is  true  where  the  devise  or 
bequest  is  to  a  person  and  the  issue  or  children  of  an- 
other person.118  If  there  is  any  intention  to  the  con- 
trary manifested,  the  distribution  should  be  per  stirpes. 
The  law  favors  that  construction  of  a  will  which  will\ 
make  a  distribution  as  nearly  conform  to  the  general 
law  of  inheritance  as  the  language  will  permit,  and 
favors  equities  rather  than  technicalities.119 

The  effect  of  section  50,  chapter  17,  Revised  Stat- 
utes, providing  that  the  share  of  a  legatee  dying  before 
the  testator  shall  go  to  his  issue,  would  in  many  cases 
make  a  distribution  per  stirpes  which  would  otherwise 
be  per  capita.™ 

§  40.    Residuary  estate. 

Xo  particular  form  of  words  is  necessary  to  convey 
the  residuary  estate.  It  includes  all  the  property,  both 

117  Losey  v.  Westbrook,  35  N.  J.  Eq.  116;  Huntress  v.  Place,   137 
Mass.  409;  Campbell  v.  Clark,  64  N.  H.  328,  10  Atl.  702. 

118  Hill   v.   Bowers,    120   Mass.    135;    McCartney   v.   Osburn,   118   111. 
403,  9  N.  E.  210;  Burnet's  Exrs.  v.  Burnet,  30  N.  J.  Eq.  595;  Steven- 
son v.  Lesley,  70  N.  Y.  512. 

119  Rivenett  v.  Bourquin,  53  Mich.   10,   18  N.  W.  537;   Johnson   v. 
Ballou,    28   Mich.   392;   Letchworth's   Appeal,   30    Pa.    175;    Eberts   v. 
Eberts,  42  Mich.  404,  4  N.  W.  172;  Toms  v.  Williams,  41  Mich.  574, 
2  X.  W.  814. 

120  Rivenett  v.  Bourquin,  53  Mich.  10,  18  N.  W.  537. 

(57) 


§  40  PROBATE    AND    ADMINISTRATION.  [Chap.  2 

real  and  personal,  of  every  name,  nature  and  descrip- 
tion, belonging  to  the  testator,  and  not  effectually  dis- 
posed of  by  the  other  clauses  of  the  will; 121  and  lapsed, 
void  and  illegal  bequests  or  devises,  from  whatever 
cause  produced.122  In  Williams  v.  Johnson,123  the 
court  held  a  will  disposing  of  "the  balance  of  my 
means,"  where  there  had  been  previous  bequests  of 
personalty,  as  not  including  after-acquired  realty. 
Unless  there  be  a  contrary  intention  expressed,  it  in- 
cludes reversionary  interests,  though  created  by  the 
will  itself.124  It  includes  the  income  accruing  from 
legacies  and  devises,  the  time  for  the  payment  of  which 
is  fixed  at  a  future  date ; 125  and  this  is  true,  although 
the  residuary  bequest  or  devise  itself  does  not  vest 
until  a  future  date.  Where  the  legatee  refuses  to 
accept  the  legacy,  or  the  widow  elects  to  take  her 
statutory  portion,  instead  of  according  to  the  will,  the 
land  so  devised  passes  to  the  heir  of  the  testator,  and 
not  to  the  residuary  estate.126  Where  the  residuary 
legacy  is  to  two  or  more  persons,  the  death  of  one  or 
the  lapse  of  his  share  for  any  reason  will  not  pass  his 
share  to  the  other,  but  it  will  become  a  part  of  the 

121  Bernard  v.  Minshull,  1  Johns.  Ch.  276. 

122  Drew  v.  Wakefield,  54  Me.   296;   Tindall  v.  Tindall's  Exrs.,  23 
N.  J.  Eq.  244;  Tongue's  Lessee  v.  Nutwell,  13  Md.  415. 

123  112  111.   61. 

124  Geyer  v.   Wentzel,   68  Pa.   84;   Irwin  v.  Zane,   15   W.  Va.   646; 
Brigham  v.  Shattuck,  10  Pick.  (Mass.)  308;  Floyd  v.  Carow,  88  N.  Y. 
560. 

125  Kerr  v.  Bosler,  62  Pa.  187;  Page's  Appeal,  71  Pa.  402. 

126  James  v.  James,  4  Paige  (N.  Y.),  117. 

(58) 


Chap.  2]   PREPARATION  AND  DRAFTING  OF  WILLS.     §  40 

Hi 

intestate  estate.127  This  rule,  of  course,  would  not 
\  apply  to  a  residuary  bequest  or  devise  to  a  child  of 
the  testator,  the  devisee  or  legatee  dying  before  the 
testator  and  leaving  issue.  The  bequest  or  devise 
would  then  pass  to  the  issue.128 

127  Huber's    Appeal,    80     Pa.     349;     Burnet's    Exrs.   v.   Burnet,   30 
N.  J.  Eq.  595;  Garthwaite's  Exr.  v.  Lewis,  25  N.  J.  Eq.  351;  Kerr  v. 
Dougherty,  79  N.  Y.  327. 

128  Rev.  Stats.,  e.  17,  §  2,  [1266]. 

(59) 


CHAPTER  III. 

EXECUTION  OF  WILLS. 

§  41.  Statutory  Requirements  Concerning  Signature  and  Witnesses. 

42.  Signature. 

43.  Witnesses. 

44.  Attestation. 

45.  Alterations. 

46.  Republication. 

47.  How  Nuncupative  Will  Executed. 

48.  Soldiers'  and  Marines'  Wills. 

§  41.    Statutory  requirements  concerning  signatures 
and  witnesses. 

A  will  made  within  the  state,  other  of  course  than  a 
nuncupative  instrument,  in  order  to  be  effectual  to 
pass  the  title  to  any  estate,  either  real  or  personal,  or 

^*"  ^^^  f* 

in  any  way  affect  the  same,  must  be  in  writing,  signed 
by  the  testator  or  by  some  person  for  him  in  his  pres- 
ence and  by  his  express  direction,  and  attested  and 
subscribed  in  the  presence  of  the  testator  by  two  com- 
petent witnessesT)  If  the  witnesses  are  competent  at 
the  time  of  its  execution,  their  subsequent  incompe- 
tency  from  any  cause  will  not  prevent  the  probate  of 
the  will  and  the  allowance  of  the  same.1 

It  may  be  written  on  separate  sheets  of  paper  not 
fastened  together,2  and  other  papers  already  in  exist- 
ence and  fully  executed  may  be  incorporated  into  it 
by  an  apt  clause  for  that  purpose  identifying  them 

1  Rev.  Stats.,  c.  17,  §26,   [1290];  L.  O.  L.,  §7319;  Wendel  v.  Furst 
(Or.),  136  Pac.  2;  In  re  Manser's  Estate,  60  Or.  229,  118  Pac.  1022. 

2  Schillinger  v.  Bawek,  135  Iowa,  131,  112  N.  W.  210. 

(60) 


Chap.  3]  EXECUTION  OF  WILLS.  §  42 

with  reasonable  certainty,  and  showing  a  clear  inten- 
tion to  make  them  a  part  of  the  will.3 

§  42.    Signature  to  a  will. 

The  testator  should  sign  his  name  in  full  at  the.  end 
of  the  will.  Any  clause  inserted  below  the  signature 
will  not  be  considered  as  a  part  of  the  instrument.4 
If  he  is  unable  to  write,  the  words  composing  his  name 
may  be  written  by  some  other  person,  and  he  himself 
affix  his  mark  or  cross  or  other  character  intended  or 
adopted  as  and  for  a  signature.5 

The  person  who  writes  the  name  of  the  testator  must 
do  so  by  his  previously  expressed  direction  and  in  his 
presence.6  The  request  must  be  made,  whether  the 
testator  immediately  after  the  writing  of  the  words 
composing  the  name  made  his  mark  or  not.  A  mere 
knowledge  by  the  testator  that  some  person  is  signing 
or  has  signed  his  name  to  the  instrument  does  not 
comply  with  the  law,  nor  can  he  by  an  express  act  or 
direction  .ratify  a  signature  previously  made.7 

The  party  who  writes  the  testator's  name  must  be 
competent  to  act  as  a  witness,  and  should  sign  as 

3  Hopper  v.  Hopper,  90  Neb.  622,  134  N.  W.  235;  Dodson  v.  Dod- 
son,  142  Mich.  586,  105  N.  W.  1110;  Gerrish  v.  Gerrish,  8  Or.  351. 

4  Glancy  v.  Glancy,  17  Ohio  St.  134. 

5  Thompson   v.   Thompson,   49   Neb.   157,   68  N.   W.   372;   McCoy  v. 
Conrad,  64  Neb.  150,  89  N.  W.  665;  Pool  v.  Buffum,  3  Or.  438;  More- 
land  v.  Brady,  8  Or.  312. 

6  Pickett's  Will,  49  Or.  127,  89  Pac.  377. 

^  Murray  v.  Hennessey,  48  Neb.  608,  67  N.  W.  470;  McCoy  v.  Con- 
rad, 64  Neb.  150,  89  N.  W.  655;  Elliott  v.  Elliott,  3  Neb.  Unof.  832, 
92  N.  W.  1006;  Davidson's  Estate,  70  Neb.  584,  97  N.  W.  797;  Isaac 
v.  Halderman,  76  Neb.  823,  107  N.  W.  1016. 

(61) 


§  43  PROBATE    AND   ADMINISTRATION.  [Chap.  3 

such.8  If  the  testator  does  not  make  his  mark,  the 
person  who  writes  his  name  must  state  that  he  sub- 
scribed the  testator's  name  at  his  request.9 

§  43.    Witnesses. 

The  two  witnesses  to  a  will  should  be  persons  who 
are  given  no  beneficial  interest  under  it.  Bequests  or 
devises  to  a  subscribing  witness  do  not  make  the  will 
void,  but,  unless  there  are  a  sufficient  number  of  dis- 
interested witnesses,  invalidate  the  gift,  except  that 
a  new  charge  on  lands  for  the  payment  of  devisor's 
debts  does  not  render  such  creditor  incompetent  to 
act  as  a  witness,10  nor  do  devises  and  bequests  to  par- 
ties who  would  take  were  decedent  intestate.  Such 
parties  take  the  same  share  as  if  decedent  was  intes- 
tate not  exceeding  the  value  of  such  gift,  and  are 
entitled  to  recover  the  same  from  the  other  benefi- 
ciaries.11 A  devise  in  trust  in  which  the  trustee  has 
no  beneficial  interest,  it  has  been  held,  does  not  dis- 
qualify such  trustee  from  becoming  a  witness,12  nor 

does  a  clause  appointing  " an  attorney  at  law 

to  assist  the  executor,"  being  merely  advisory,  dis- 
qualify such  attorney.13 

Under  the  Oregon  statute,  a  legatee  is  also  a  compe- 
tent witness  if  before  giving  his  testimony  his  bequest 
or  legacy  has  been  paid,  accepted  or  released,  or  he 

8  Herbert  v.  Eerier,  81  Ind.  1;  Bobbins  v.  Coryell,  27  Barb.  (N.  Y.) 
556. 

»  Pool  v.  Buffum,  3  Or.  438;  Moreland  v.  Brady,  8  Or.  312;  L.  O.  L., 
§  7320. 

10  Rev.  Stats.,  e.  17,  §  29,  [1293] ;  L.  0.  L.,  §§  7335,  7337,  7338. 

11  Rev.  Stats.,  c.  17,  §  30,  [1294];  L.  O.  L.,  §  7336. 

12  Hogan  v.  Wyman,  2  Or.  304. 

13  Pickett's  Will,  49  Or.  127,  89  Pac.  337. 

(62) 


Chap.  3]  EXECUTION  OF  WILLS.  §  43 

has  refused  to  accept  the  same  on  tender  thereof,14  but 
his  credit  is  subject  to  the  consideration  of  the  court 
or  jury.15  The  statute  does  not  permit  him  to  receive 
any  compensation  from  any  person  interested  in  the 
estate  for  so  testifying  or  subsequently  receiving  the 
gift.16 

A  legatee  or  devisee  who  has  attested  the  execution 
of  the  will  and  died  before  the  death  of  testator  or 
subsequently,  and  before  he  has  received  his  bequest 
or  legacy,  or  released  or  refused  tender  of  the  same, 
is  also  a  legal  witness.17 

Any  persons  who  at  the  date  of  the  execution  of  the 
will  would  be  competent  to  testify  in  a  court  may  be- 
come witnesses  to  it,18  and  their  subsequent  incompe- 
tency  from  any  cause  will  not  prevent  the  probate  of 
the  will  if  it  be  otherwise  proved.19  They  should  be 
parties  who  are  sufficiently  acquainted  with  the  tes- 
tator to  be  sure  of  his  testamentary  capacity  and  iden- 
tity.20 Relatives  of  beneficiaries,21  or  of  the  testator, 
who  are  given  nothing  by  the  will  and  are  not  his 
heirs  are  competent,22  as  is  also  a  person  named  as 
executor  who  is  not  a  devisee  or  legatee.23 

14  L.  O.  L.,  §  7339. 

15  L.  O.  L.,   §  7340. 

16  L.  O.  L.,   §  7342. 

17  L.  O.  L.,  §  7341. 

18  Carlton   v.   Carlton,   40   N.   H.   14;    O'Brien   v.   Bonfield,   213   111. 
428. 

19  Rev.  Stats.,  c.  17,  §26,  [1290];  Hiatt  v.  McColley,  171  Ind.  91, 
85   N.   E.   772. 

20  Brinckerhoff  v.  Remsen,  26  Wend.  (N.  Y.)  325;  Scribner  v.  Crane, 
2  Paige  (X.  Y.),  147. 

21  Maxwell  v.  Hill,  89  Tenn.  584.  15  S.  W.  253. 

22  Sparhawk  v.  Sparhawk,  10  Allen   (Mass.),  115. 

23  In  re  Holt,  56  Minn.  33,  57  N.  W.  219;  In  re  Tierney's  Estate, 
103  Minn.  286,  114  N.  W.  838. 

(63) 


§  43  PROBATE    AND    ADMINISTRATION.  [Chap.  3 

The  witnesses  should  be  requested  to  act  as  such  by 
the  testator,  or  by  some  relative,  or  the  attorney  who 
prepared  the  will,  under  the  express  or  implied  direc- 
tion of  the  testator.24 

The  signature  of  the  testator  should  be  made  before 
that  of  the  witnesses.  Such  signature  is  the  first  and 
most  important  act  connected  with  the  formal  execu- 
tion of  the  instrument,  and  until  signed  it  is  merely 
an  unexecuted  writing.25  The  witnesses  must  sign  in 
the  actual  presence  of  the  testator.  What  constitutes 
actual  presence  has  been  the  subject  of  much  judicial 
discussion,  and  some  very  close  distinctions  have  been 
drawn.  The  general  rule  is  that  they  should  subscribe 
their  names  to  the  will  in  some  place  in  the  same  or  ad- 
joining room,  where  the  testator  can  observe  their 
movements,  and  see  that  they  write  their  names  on  the 
instrument  which  he  has  just  signed;  in  other  words, 
within  the  hearing,  knowledge  and  understanding  of 
the  testator.26  It  is  not  necessary  that  the  witnesses 
see  the  testator  sign,  if  he  acknowledges  to  them  that 
he  has  signed  the  will  and  shows  them  his  signature 

24  Thompson   v.   Thompson,   49   Neb.    157,   68   N.  W.  372;   Luper   v. 
Werts,  19  Or.  122,  23  Pac.  850;   In  re  Ames'  Will,  40  Or.  495,  67  Pac. 
737;   Wendel  v.  Furst   (Or.),  136  Pac.  2;   In  re  Meurer's  Will,  44  Wis. 
392. 

25  Dewey  v.  Dewey,  1  Met.   (Mass.)   354;   Schemerhorn  v.  Merritt, 
123  Mich.  310,  82  N.  W.  314;  Smith  v.  Eyan's  Estate,  136  Iowa,  335, 
112  N.  W.  8. 

26  Drury  v.  Connell,  177  111.  43,  53  N.  E.  368;  Cook  v.  Winchester, 
81  Mich.  581,  46  N.  W.   106;   Cunningham  v.  Cunningham,  80  Minn. 
180,  83  K  W.  60;  Biggs  v.  Kiggs,  135  Mass.  238. 

(64) 


Chap.  3]  EXECUTION  OF  WILLS.  §  44 

thereto,27  nor  that  the  witnesses  sign  in  the  presence  of 
each  other,  though  this  is  the  usual  practice.28 

§  44.    Attestation. 

To  attest  a  will  is  to  know  that  it  was  signed  as  such 
and  to  certify  the  facts  required  to  constitute  a  legal 
publication.29  It  differs  from  merely  signing  one's 
name  as  a  witness.  Subscription  is  mechanical — the 
act  of  the  hand,  a  mere  writing  of  one's  name  for  the 
purpose  of  identification — while  attestation  is  mental. 
The  witnesses  should  therefore  learn  from  the  testator 
tKat  the  instrument  which  they  are  called  upon  to  sign, 
and  which  bears  his  signature,  has  been  signed  by  him 
as  and  for  his  will.30  It  is  not  necessary  that  he  in- 
form them  in  so  many  words  that  the  instrument  is 
his  will.  If  he  gives  them  to  understand  by  signs, 
words  or  other  manner  that  the  instrument  is  intended 
for  his  last  will,  or  if  in  answer  to  questions  by  them 
or  the  scrivener,  or  by  expressly  assenting  to  state- 
ments made  by  parties  present,  he  gives  the  witnesses 
to  understand  that  the  instrument  already  signed  is 
his  will,  the  attestation  is  complete.31  They  need  not 
know  the  terms  of  the  will  itself,  but  should  see  the 

27  Haynes  v.  Haynes,  33  Ohio  St.  598. 

28  Holyoke  v.  Sipp,  77  Neb.  394,  109  N.  W.  506;  Johnson  v.  Johnson, 
106  Ind.  475,  7  N.  E.  201;  In  re  Smith's  Will,  52  Wig.  543,  8  N.  W. 
616. 

29  Swift  v.  Wiley,  1  B.  Mon.  (Ky.)  114. 

30  Abbott  v.  Abbott,  41   Mich.  540;   Raudenbaugh  v.  Shelley,  6  Ohio 
St.  307;  Adams  v.  Field,  24  Vt.  256. 

31  Luper  v.  Werts,  19  Or.  122,  23  Pac.  850;  Brinckerhoff  v.  Remsen, 
8  Paige  (N.  Y.),  488;  Harrington  T.  Stees,  82  111.  50;  In  re  Johnson's 
Estate,  57  Cal.  529. 

6— Pro.  Ad.  (65) 


§  45  PROBATE    AND    ADMINISTRATION".  [Cliap.  3 

signature  of  the  testator  and  the  attestation  clause, 
if  there  is  one,  besides  having  a  personal  knowledge 
that  the  testator  intends  the  instrument  for  a  will.32 

A  formal  attestation  clause  is  not  necessary  to  make 
a  will  valid.  It  may  be  probated  when  it  contains  no 
such  clause  whatever — merely  the  signature  of  the 
testator  and  witnesses — provided  that  their  evidence 
shows  that  they  signed  it  in  the  presence  of  the  tes- 
tator and  that  all  the  formalities  required  by  the  stat- 
utes have  been  complied  with.33  An  attestation  clause 
reciting  a  compliance  with  the  statutory  requirements 
is  prima  facie  evidence  of  a  legal  execution  of  the  in- 
strument,34 but  does  not  do  away  with  ordinary  proof 
of  the  will.35 

The  purposes  for  requiring  wills  to  be  attested  are 
to  prove  the  signature,  obtain  evidence  of  the  capacity 
of  the  testator,  and  insure  the  identity  of  the  will.30 

§  45.    Alterations. 

Previous  to  the  execution  of  a  will  alterations  by 
erasure,  interlineation  or  addition  may  be  made,  and 
are  valid.37  Unless  they  be  of  a  minor  character,  such 

32  In  re  Ayer's  Estate,  84  Neb.  16,  120  N.  W.  491;   Haack  v.  Tobin, 
79  Minn.   101,  81   N.  W.  758;  In  re  Will  of  McKay,   110  N.  Y.  611, 
18  N.  E.  433;  Simmons  v.  Leonard,  91  Tenn.  183,  18  S.  W.  280. 

33  Monroe  v.  Hudart,  79  Neb.  569,  113  N.  W.  149;  Williams  v.  Miles, 
68,Neb.  463,  94  N.  W.  705,  96  N.  W.  151;  Ferris  v.  Neville,  127  Mich. 
444,  86  N.  W.  960;  Lautenschlager  v.  Lautenschlager,  80  Mich.  292, 
45  N.  W.  147. 

34  Holyoke   v.   Sipp,   77  Neb.  394,   109   N.  W.  506;    Skinner's   Will, 
40  Or. '579,  62  Pac.  523,  67  Pac.  951. 

35  Section  81,  post. 

«    3tr  fl-Oreenl.  Ev;  691  ;  Lord  v.  Lord,  58  N.  H.  7. 
37  Ho'lman  v.  Kiddle,  8  Ohio  St.  384. 

(66) 


Chap.  3]  EXECUTION  OF  WILLS.  §  46 

as  slight  changes  in  wording  or  correction  of  apparent 
errors,  they  should  be  noted  in  the  attestation  clause. 
Slight  corrections  and  interlineations  are  presumed  to 
have  been  made  previous  to  the  execution  of  the 
instrument.38 

The  only  way  a  will  once  made  can  be  changed  is 
by  a  codicil,  or  by  an  entirely  new  instrument  exe- 
cuted in  the  same  manner  as  the  original.  Altera- 
tions, though  made  without  the  expressed  knowledge, 
permission  or  consent  of  the  testator,  do  not  invali- 
date it.  It  must  be  admitted  to  probate  just  as  it 
originally  stood,  and  parol  evidence  is  admissible  to 
prove  what  its  contents  were.39 

§  46.    Republication  of  wills. 

If  a  will  is  not  executed  in  the  manner  provided  by 
law,  it  is  absolutely  void,  and  has  no  binding  effect 
unless  re-executed  in  the  same  manner  as  an  original 
will.  There  is,  however,  one  apparent  exception  to 
this  rule.  If  the  original  will  is  void  because  not  prop- 
erly executed,  a  codicil  signed  and  attested  in  strict 
compliance  with  the  statute,  which  in  express  terms 
confirms  the  will,  is  a  republication  and  reacknowledg- 
ment  of  such  will,  and  remedies  all  the  defects  in  its 
execution.40 

38  Wheeler  r.  Bent,  7  Pick.  (Mass.)  61. 

39  Monroe  v.  Hudart,  79  Neb.  569,  113  N.  W.  149. 

40  Hawke  v.  Euyart,  30  Neb.  149,  46  N.  W.  422;  McCurdy  v.  Neal, 
42    X.    J.    Eq.   333,    7    Atl.    566;    1    Redfield,   Wills,    288;    Skinner    v. 
American  Bible  Soc.,  92  Wig.  209,  65  N.  W.  1037;  Vogel  v.  Lehritter, 
139  N.  Y.  223,  34  N.  E.  914. 

(67) 


§  46  PKOBATE    AND   ADMINISTBATION.  [Chap.  3 

Form  No.  11. 
WILL  BEQUEATHING  EVERYTHING  TO  WIFE. 

The   Last   Will   and    Testament    of   A.   B.,   of  ,   County, 

Nebraska. 

I,  A.  B.,  of  the  city  of  ,  county,  Nebraska,  do  hereby 

make,  publish,  and  declare  this  my  last  will  and  testament  in  words 
and  figures  following:*  I  give,  devise,  and  bequeath  unto  my  wife, 
C.  B.,  all  my  property  of  every  description,  both  real  and  personal. 

I  hereby  constitute  and  appoint  my  said  wife,  C.  B.,  executrix  of 
this,  my  last  will  and  testament,  [if  testator  wishes  to  relieve  her 
from  the  necessity  of  giving  a  bond  add]  and  request  that  no  other 
bond  be  required  of  her  as  such  executrix  except  her  own  personal 
obligation. 

Dated   at  ,   Nebraska,   this  day   of  ,    19 — . 

(Signed)     A.  B. 

We  whose  names  are  hereunto  subscribed  do  hereby  certify  that 
A.  B.,  the  testator,  subscribed  his  name  to  this  instrument  in  our 
presence,  and  in  the  presence  of  each  of  us,  and  declared  at  the 
same  time,  in  our  presence  and  hearing,  that  this  instrument  was 
his  last  will  and  testament,  and  we,  at  his  request,  sign  our  names 
hereto  in  his  presence  as  witnesses. 

(Signed)     E.  F.,  of ,  Nebraska. 

G.  H.,  of ,  Nebraska. 

Form  No.  12. 

WILL   GIVING   LIFE    ESTATE    TO   WIDOW,    AND    REMAINDER 

TO  HEIRS. 

[As  in  No.  11  to  *,  then:]  I  give,  devise,  and  bequeath  unto  my 
wife,  C.  B.,  the  following  described  real  estate  [describe  property] 
for  and  during  her  natural  life;  at  her  death,  the  remainder  in  said 
real  estate  shalj  vest  in  my  children,  G.  B.,  H.  B.,  L.  N.,  and  C.  M., 
as  tenants  in  common.  This  devise  is  in  lieu  of  any  distributive 
share  in  my  said  estate  given  her  by  law. 

(2)  I  give  and  bequeath  unto  my  son  G.  B.  the  sum  of  $ ; 

unto  my  son  H.  B.  the  sum  of  $ . 

(3)  I  give  and  bequeath  unto  my  grandchildren,  B.  M.,  C.  M.,  and 
F.  B.,  the  sum  of  $ each. 

(4)  I    hereby    authorize    and    direct    my    said    executors,    provided 
the  personal  property  which  may  come  into  their  possession  as  such 

(68) 


Chap.  3]  EXECUTION  OF  WILLS.  §  46 

executors  shall  be  insufficient  to  pay  the  legacies  in  paragraphs  2 
and  3  mentioned,  to  sell  the  following  described  real  estate,  [describe 
property]  or  so  much  thereof  as  they  may  deem  necessary,  execute 
good  and  sufficient  deeds  therefor,  and  from  the  proceeds  of  such 
sale  pay  said  legacies;  any  of  the  proceeds  of  such  sale  or  sales  re- 
mainirg  in  their  hands  to  be  invested  as  hereinafter  directed. 

(5)  I   give   and   bequeath   unto   my   wife,   C.   B.,   all  my   household 
furniture,  jewelry,  clothing,  and  personal  effects. 

(6)  I  hereby  direct,  authorize,  and  empower  my  said  executors  to 
sell  all  the  rest,  residue,  and  remainder  of  my  real  estate,  and  con- 
vert the  same  into  interest  bearing  securities,  and  from  the  income 
therefrom  pay  my  said  wife,  C.  B.,  the  sum  of  $ per  year  dur- 
ing her  natural  life,  or  as  long  as  she  remains  my  widow,  and  the 
balance  of  said  income  to  the  children  of  my  daughter  L,  N.     Should 
my  said  wife  remarry,  her  annuity  shall  be  treated  as  a  part  of  my 
residuary  estate. 

(7)  Upon  the  death  or  remarriage  of  my  said  wife,  all  the  residue 
and  remainder  of  my  said  estate,  including  any  portion  of  the  real 
estate  in  paragraph  4  mentioned  which  may  not  have  been  sold  shall 
be  equally  divided  between  my  children  and  the  lawful  issue  of  any 
deceased  child,  by  right  of  representation. 

(8)  I  hereby  revoke  any  former  will  or  wills  by  me  made. 

(9)  I  hereby   constitute   and   appoint  E.   F.    and   G.   H.,   of  , 


County,  Nebraska,  executors  of  this,  my  last  will  and  testament. 


Dated,  etc. 

[Add  attestation,  Form  No.  11.] 

Form  No.  13. 
WILL  PLACING  PROPERTY  IN  CONTROL  OF  TRUSTEES. 

[As  in  No.  11  to  *,  then:]  I  give  and  devise  to  my  executors  and 
their  successors  in  trust  the  following  described  property,  [describe 
property]  in  trust,  however,  to  receive  the  rents,  issues,  and  profits 
thereof  until  my  grandson  C.  B.  shall  attain  the  age  of  25  years, 
when  I  give  and  devise  the  same  to  him,  and  direct  my  said  executors 
to  convey  the  same  to  him  absolutely,  and  also  to  pay  over  to  him  all 
the  rents,  issues,  and  profits  received  by  them  therefrom  after  first 
paying  the  taxes  on  said  lands  and  the  cost  of  necessary  repairs 
to  the  buildings  thereon. 

(2)  The  balance  of  my  real  estate,  and  all  moneys,  notes,  bonds, 
stocks,  mortgages,  and  other  securities.  I  give,  devise,  and  bequeath 
unto  my  executors  and  their  successors  in  trust,  to  invest  and  keep 

(69) 


§  46  PROBATE    AND    ADMINISTRATION.  [Cliap.  3 

the  same  invested,  and  to  receive  the  rents,  issues,  and  profits  there- 
of, and  during  the  lifetime  of  my  wife,  C.  B.,  out  of  said  rents,  issues, 

and  profits,  to  first  pay  to  her  an  annuity  of  $ per  annum,  and 

distribute  the  balance  of  said  rents,  issues,  and  profits  among  all 
my  children  equally,  share  and  share  alike,  the  issue  of  any  de- 
ceased child  taking,  by  right  of  representation,  the  share  thereof 
which  his,  her,  or  their  parent  would  have  taken  if  living;  and, 
upon  the  death  of  my  said  wife,  divide  my  said  estate  among  all  my 
children  and  grandchildren  in  the  same  manner  in  which  said  rents, 
issues,  and  profits  are  to  be  divided.  And  for  the  purposes  of  the 
trust  hereby  reposed,  my  executors  and  trustees,  and  their  succes- 
sors in  trust,  are  authorized  and  empowered  to  sell  and  convey  any 
and  all  the  personal  property,  and  any  and  all  the  real  estate  except 
that  real  estate  mentioned  in  paragraph  1  of  which  I  may  die  seised, 
and  convert  the  same  into  money,  and  invest  and  keep  invested  the 
same  for  the  purposes  of  the  trust  herein  specified,  and  generally  for 
such  purposes,  and,  in  their  discretion,  to  convert  realty  into  per- 
sonalty and  personalty  into  realty. 

(3)  For  the  purposes  of  carrying  out  this  trust,  my  said  executors 
and  trustees  are  hereby  authorized  and  empowered,  if  they  think  it 
best,  to  mortgage,  for  the  sum  of  not  more  than  $ ,  the  follow- 
ing described  real  estate,  ,  and  use  the  proceeds  of  said  mort- 
gage  in   the   construction   of   a   substantial   brick   or   stone   block   on 
said    property. 

(4)  My  clothing,  jewelry,  books,  pictures,  horses,  carriages,  sleighs, 
and   household   furniture   and   barn   equipments   I   give   and   bequeath 
to  my  wife,  C.  B.     The   foregoing  provisions   for  my  said  wife  are  in 
lieu  of  any  statutory  right  or  interest  she  may  have  in  my  estate. 

Dated  at  ,  Nebraska,  this  day  of  ,  19 — . 

(Signed)     A.    B. 
[Add  attestation,  Form  No.  11.] 

Form  No.  13a. 
EESIDUARY  CLAUSE. 

The  residue  of  my  estate  remaining  after  the  satisfaction  of  the 
above  bequests  and  devises,  including  after-acquired  property,  and 
any  devise  or  bequest  which  may  fail  for  any  cause  whatsoever,  -I 
give  and  devise  in  equal  shares  to  my  children  and  the  lawful  issue 
of  any  deceased  child,  such  issue  taking  by  representation. 

(70) 


Chap.  3]  EXECUTION  OF  WILLS.  §  46 

Fonn  No.  13b. 
DEVISE  OF  LIFE  ESTATE  WITH  POWER  OF  SALE. 

I   give    and    devise   unto    my   wife    C.   B.    the    following    described 

real  estate:  ,  to  have  and  to  hold  the  same  during  the  period 

of  her  natural  life,  but  with  full  power  and  authority  to  sell  and 
convey  any  part  or  portion  thereof  at  any  time  when  it  becomes 
necessary  for  her  support,  said  support  to  be  such  as  is  suitable 
for  persons  of  her  age  and  social  position,  and  of  a  like  character 
to  which  she  was  accustomed  during  the  later  years  of  our  married 
life.  The  remainder,  if  any,  in  said  above-described  real  estate  shall 
become  a  part  of  my  residuary  estate  and  shall  pass  as  hereinafter 
provided. 

Form  No.  13a 

DEVISE  OF  LIFE    ESTATE    WITH    LIMITED    POWER  OF  DIS- 
POSITION OF  THE  FEE. 

I    give    and    devise   unto   my   wife    C.    B.    the    following   described 

real  estate:  ,  to  have  and  to  hold  the  same  during  the  period 

of  her  natural  life.  Upon  the  death  of  my  said  wife  I  give  and 
devise  the  remainder  in  said  real  estate  to  my  children,  and  the  lawful 
issue  of  any  deceased  child,  in  such  shares  or  parts  as  my  said 
wife  may  designate  by  her  last  will  and  testament. 

Form  No.  13d. 

DEVISE   OF  LIFE  ESTATE   WITH   FULL  POWER   OF  DISPOSI- 
TION. 

I  give  and  devise  unto  my  wife  C.  B.  the  following  described 
real  estate,  to  have  and  to  hold  the  same  during  the  period  of  her 
natural  life.  I  give  and  devise  the  remainder  in  said  above-described 
real  estate  to  such  person  or  persons  and  in  such  shares  or  parts 
as  shall  be  designated  by  said  wife  in  her  last  will  and  testament, 
but  should  she  fail  to  appoint  as  herein  provided,  such  remainder 
shall  become  a  part  of  my  residuary  estate  and  be  disposed  of  as 
hereinafter  directed. 

Form  No.  13e. 
DEVISE   SUBJECT   TO   AN   ANNUITT. 

I  give,  devise  and  bequeath  unto  my  son  C.  B.  the  following  de- 
scribed real  estate,  subject,  however,  to  the  payment  by  him,  said 

(71) 


§  46  PROBATE    AND    ADMINISTRATION.  [Chap.  3 

C.  B.,  to  my  sister  L.  M.  of  the  sum  of  $ per  annum  during  her 

lifetime;  the  first  payment  to  be  made  within  six  months  from  the 
date  of  my  death. 

Form  No.  13f. 
DEVISE— CONDITION  PRECEDENT. 

I  give  and  devise  to  my  son  C.  B.  the  following  described  real  es- 
tate:   ,  upon  condition,  however,  that  my  said  son  C.  B.  shall 

at  the  time  of  my  death  have  been  actually  engaged  in  the  occupation 
of  farming  continuously  for  not  less  than  five  years.  In  the  case  of  a 
failure  of  said  devise  by  reason  of  a  noncompliance  with  the  above 
condition,  said  real  estate  shall  become  a  part  of  my  residuary  estate. 

Form  No.  13g. 
DEVISE  OF  DEFEASIBLE  FEE. 

I  give  and  devise  unto  my  daughter  C.  B.  M.  the  following  described 

real  estate:  ;  provided,  however,  that  should  she,  said  C.  B.  M., 

die  unmarried  or  before  attaining  the  age  of  21  years,  said  real  estate 
shall  be  equally  divided  between  my  children  and  the  lawful  issue  of 
any  deceased  child,  such  issue  taking  by  representation. 

Form  No.  13h. 

DEVISE   OF   REMAINDER    WITH    CONDITIONAL   LIMITATION 

OVER. 

I  give  and  devise  the  remainder  in  said  above-described  real  estate 
to  C.  B.,  provided,  however,  that  if  said  C.  B.  shall  die  without  issue 
during  the  existence  of  said  life  estate,  then  and  in  that  case  I  give 
and  devise  said  remainder  to  E.  F. 

Form  No.  131. 

GIFT  TO  EXECUTORS  FOR  THE  BENEFIT  OF  THE  CHILDREN 
AND  WITH  POWER  TO  SELL  AND  DIVIDE  PROCEEDS. 

I  direct  that  my  executors  hereinafter  named  shall  take  charge  of 
the  residue  and  remainder  of  my  estate,  retain  the  same,  except  as 
hereinafter  provided,  until  all  of  my  children  have  attained  lawful 
age,  invest  and  keep  invested  the  residue  of  the  personal  property, 
keep  and  maintain  the  buildings  on  the  real  estate  in  first-class  tenant- 
able  condition,  with  power  to  make  such  alterations  and  improvements 
thereon  as  is  consistent  with  sound  business  management,  and  divide 

(72) 


Chap.  3]  EXECUTION  OF  WILLS.  §  46 

the  income  between  my  said  children  in  equal  shares.  Should  any 
child  die  before  final  distribution  is  made  as  hereinafter  directed 
leaving  issue  or  a  surviving  spouse,  or  both,  such  issue  or  spouse,  or 
both,  shall  be  entitled  to  the  share  of  such  deceased  child  in  said  in- 
come. My  executors  may,  in  their  discretion,  advance  to  any  child 
from  his  or  her  share  in  the  body  of  said  residue  such  amounts  as  may 
seem  to  them  desirable  for  his  or  her  education. 

As  soon  as  practicable  after  all  my  children  then  surviving  have 
become  of  lawful  age,  I  authorize  and  direct  my  executors  to  sell  said 
estate  so  placed  in  their  charge  and  divide  the  proceeds  thereof  equally 
between  my  surviving  children  and  the  lawful  issue  or  surviving 
spouse,  or  both,  of  any  deceased  child,  such  issue  or  spouse,  or  both, 
taking  by  representation,  and  all  advancements  made  to  any  child 
being  taken  into  consideration  in  making  such  distribution. 

Form  No.  13 j. 
GIFT  TO  WIFE  OF  STATUTORY  SHARE. 

I  give,  devise  and  bequeath  unto  my  wife,  C.  B.,  all  that  right,  share 
or  interest  in  my  estate  to  which  she  would  be  entitled  by  virtue  of 
the  marital  relation  should  I  die  intestate,  including  a  life  estate  in 
that  portion  of  my  real  estate  comprising  my  statutory  homestead. 

Form  No.  13k. 
GIFT  TO  A  CHURCH. 

I  give,  devise  and  bequeath  unto  the  trustees  of  the  First  Congrega- 
tional Church  of  ,  Nebraska,  all  the  residue  and  remainder  of 

my  estate,  in  trust,  for  the  purposes  and  with  the  restrictions  herein 
set  forth.  Said  sum  shall  be  invested  by  said  trustees  and  their 
successors  in  trust,  and  the  income  therefrom  devoted  by  them,  said 
trustees,  to  the  uses  and  purposes  of  said  church.  The  principal  shall 
at  all  times  be  kept  inviolate. 

Form  No.  13L 

GIFT   TO  A   CHURCH   WITH   LIMITATION  OVER   ON  FAILURE 
OF  CONDITION. 

I  give,  devise  and  bequeath  unto  the  wardens  and  vestrymen  of  St. 

James  Episcopal  Church  of the  following  described  real  estate: 

,  together  with  the  sum  of  $ for  the  purpose  of  erecting 

a  building  on  said  lot  to  be  used  by  said  church  as  a  rectory.     In  case 

(73) 


§  46  PROBATE    AND   ADMINISTRATION.  [Chap.  3 

said  building  or  other  building  erected  on  said  lot  is  used  for  any 
other  purpose,  said  lot  and  building  shall  become  the  property  of  my 
heirs. 

Form  No.  13m. 
DEVISE   DISCHARGED  FROM  LIEN  FOR   DEBTS   OF  DEVISEE. 

I  give  and  devise  unto  my  son  C.  B.  the  following  described  real 
estate,  to  have  and  to  hold  the  same  during  the  period  of  his  natural 
life,  provided,  however,  and  this  devise  is  upon  this  express  condition, 
that  said  devise  shall  not  be  chargeable  with  any  debts,  claims  or  de- 
mands now  existing  or  which  may  hereafter  exist  against  the  said 
C.  B.  The  remainder  in  said  real  estate,  unencumbered  as  herein 
expressly  provided,  shall  at  his  death  vest  in  his  issue. 

Form  No.  ISn. 

BEQUEST    TO   TRUSTEE   FOR   REASONS   WHICH    TERMINATE 
THE  TRUST  WHEN  THEY  OCCUR. 

I  give  and  bequeath  unto  my  son  C.  B.  the  sum  of  $ ,  in  trust 

for  the  use  and  benefit  of  my  daughter  L.  M.,  and  I  hereby  authorize 
and  direct  my  said  trustee  to  invest  said  sum  in  proper  securities  or 
otherwise  and  pay  the  income  and  such  part  or  portion  of  the  prin- 
cipal sum  as  may  be  needed  for  the  suitable  support  and  maintenance 
of  my  said  daughter  and  her  children,  and  if  any  sum  remains  at 
her  death,  pay  the  same  to  her  said  children.  My  reason  for  this 
bequest  in  trust  is  that  it  is  my  wish  that  my  said  daughter  have  the 
benefit  of  said  bequest  for  herself  and  children  without  any  interfer- 
ence on  the  part  of  her  husband  G.  H.  M.,  and  that  no  part  or  portion 
of  the  same  shall  ever  come  into  his  control. 

[This  bequest  gives  the  cestui  que  trust  the  right  to  the  entire  fund 
remaining  on  the  termination  of  the  marriage  by  divorce  or  death  of 
the  husband.  To  insert  a  clause  to  that  effect  is  improper.] 

Form  No.  13o. 
SPENDTHRIFT  TRUST. 

I  give,  devise  and  bequeath  unto  C.  D.,  of ,  the  following  de- 
scribed property:  ,  in  trust,  however,  with  full  power  and  au- 
thority to  devote  the  income  of  said  property,  or  such  portion  thereof 
as  may  be  necessary  for  the  support  and  maintenance  of  my  son  C.  B. 
in  manner  and  form  suitable  to  his  rank  and  social  standing,  during 
his  lifetime.  Said  trust  shall  be  administered  under  the  control  of 

(74) 


Chap.  3]  EXECUTION  OF  WILLS.  §  46 

the  court  of  ,  ,  in  the  event  that  said  trustee  or 

his  successor  or  successors  and  said  cestui  que  trust  are  unable  to  agree 
on  the  amount  necessary  for  his  support  or  the  times  and  manner  of 
payment  of  the  same. 

Upon  the  death  of  said  C.  D.  the  estate  of  remainder  in  said  prop- 
erty, together  with  the  unexpended  income,  shall  become  the  property 
of  his  lawful  heirs. 

Form  No.  13p. 
BEQUEST  IN  TRUST  FOB  INVALID  SON. 

I  give  and  bequeath  unto  C.  D.,  of  ,  in  trust  for  the  use  and 

benefit  of  my  invalid  son  C.  B.,  the  sum  of  $ .     I  direct  my  said 

trustee  to  devote  the  income  of  said  bequest,  or  such  portion  of  the 
principal  as  may  be  for  the  best  interest  of  my  said  son,  for  his  care, 
support,  maintenance  and  general  welfare.  Any  residue  remaining 
on  the  termination  of  this  trust  shall  become  the  property  of  the  heirs 
of  my  said  son. 

Form  No.  13q. 

DEVISES     TO     CHILDREN     VESTING     WHEN     THEY     ATTAIN 
FIXED  AGES. 

I  give  and  devise  to  my  son  C.  B.  the  following  described  real  es- 
tate:   ;  provided,  however,  that  this  devise  shall  not  vest  in 

possession  in  said  C.  B.  until  he  becomes  of  lawful  age,  and  that  my 
wife  M.  B.  shall  have  the  use,  control  and  possession  of  said  property 
until  said  C.  B.  becomes  of  age. 

I  give  and  devise  unto  my  daughter  L.  B.  the  following  described 

real  estate:  ;  provided,  however,  that  this  devise  shall  not  vest 

in  possession  in  said  L.  B.  until  she  attains  the  age  of  21  years. 
Should  my  said  daughter  L.  B.  die  without  issue  before  attaining  the 
age  of  21  years,  said  devise  shall  vest  in  her  brothers  and  sisters,  but 
possession  by  each  of  his  or  her  share  shall  be  postponed  until  he  or 
she  becomes  of  the  age  of  21  years.  Until  said  devise  or  devises  vest 
in  possession  my  said  wife,  M.  B.  shall  have  the  use,  control  and 
possession  of  said  property. 

Form  No.  13r. 

DEVISE  WITH  RESTRICTION  AGAINST  SALE  OF  LIQUORS  ON 
THE  PREMISES. 

I  give  and  devise  unto  my  sons  A.  B.  and  C.  B.  the  following  de- 
scribed real  estate:  ;  subject,  however,  to  the  following  condi- 

(75) 


§  46  PROBATE    AND   ADMINISTRATION.  [Chap.  3 

tions  and  restrictions,  which  said  conditions  shall  be  strictly  construed 
in  favor  of  the  state  of  Nebraska,  with  limitation  over  in  case  of 
failure  of  condition.  This  devise  is  upon  these  express  conditions: 
No  malt,  spirituous,  vinous  or  intoxicating  liquor  shall  ever  be  manu- 
factured, sold,  stored,  kept,  bargained,  traded  or  given  away  on  said 
real  estate  or  in  any  building  or  structure  which  now  is  or  may  here- 
after be  erected  on  said  premises.  Every  instrument  of  conveyance 
of  said  real  estate  or  of  any  part  or  portion  thereof,  or  of  any  right 
or  interest  therein,  executed  by  any  devisee,  heir  or  grantee  of  said 
real  estate,  or  any  part  or  portion  thereof,  or  any  right,  title  or  interest 

therein,  shall  set  out  this  paragraph  numbered of  this  my  said 

will  in  full. 

Upon  any  breach  of  conditions  and  restrictions  in  this  devise  con- 
tained, the  ownership  and  right  to  the  possession  of  the  lot  or  tract 
on  which  such  breach  occurs,  or  of  the  tract  or  lot  the  title  to  which 
or  any  right  or  interest  therein  is  attempted  to  be  conveyed  without 

reciting  this  said  paragraph  of  this  my  said  will,  with  all  the 

improvements  thereon,  shall  at  once  vest  in  the  state  of  Nebraska,  and 
be  held  or  disposed  of  as  escheated  property. 

Form  No.  13s. 

DEVISE  TO  WIDOW  OF  LIFE  ESTATE  OB  ESTATE  FOB  YEAES 
CHAEGED  WITH  SUPPOET  AND  EDUCATION  OF  CHILDEEN. 

I  give  and  devise  unto  my  said  wife  C.  B.  the  following  described 

real  estate:  ;  to  have  and  to  hold  the  same  during  the  period 

of  her  natural  life  or  as  long  as  she  remains  my  widow  ;  pro- 
vided, however,  that  my  minor  children  shall  be  entitled  to  their  sup- 
port, maintenance,  and  an  education  equivalent  to  that  afforded  by 
the  ordinary  high  schools  of  the  state  from  the  income  of  such  devise. 
Upon  the  death  or  remarriage  of  my  said  wife  the  remainder  in  said 
real  estate  shall  vest  in  my  heirs. 

Form  No.  13t. 

GIFT    TO    WIDOW    WITH    POWEB    OF    SALE    FOB    SPECIFIC 

PUEPOSES. 

I  give,  devise  and  bequeath  unto  my  wife  C.  B.  the  following  de- 
scribed property,  to  have  and  to  hold  the  same  in  trust  for  the  use  and 

benefit  of  my  minor  children:  .     Said  bequest  and  the  income 

from  said  devise  shall  be  used  for  the  support,  maintenance  and  educa- 
tion of  said  children.  Should  said  bequest  and  said  income  prove  in- 

(76) 


Chap.  3]  EXECUTION  OF  WILLS.  §  46 

sufficient  therefor,  I  hereby  grant  unto  said  trustee  full  and  complete 
power  and  authority  to  sell  and  convey,  provided  said  bequest  be 
exhausted,  any  part  or  portion  of  said  devise  for  the  purpose  of  creat- 
ing a  fund,  which  shall  be  invested  by  her,  and  the  income  therefrom, 
with  such  part  of  the  principal  as  she  may  deem  for  the  best  interest 
of  my  children,  shall  be  used  for  the  purposes  above  set  forth.  For 
the  purpose  of  carrying  out  the  provisions  of  this  paragraph  I  grant 
unto  my  said  wife  full  power  and  authority  to  execute  and  deliver 
necessary  deed  or  deeds  of  conveyance  of  any  part  or  portion  of  said 
real  estate.  I  direct  that  an  accurate  account  be  kept  by  my  said 
wife  of  the  amounts  expended  from  this  gift  for  the  purpose  of  de- 
fraying the  expenses  of  the  education  of  any  child  at  any  other  than 
the  public  schools  of  this  county.  When  all  my  children  are  of  law- 
ful age,  this  trust  shall  cease  and  determine,  said  trust  property  shall 
be  sold  by  said  trustee  and  the  proceeds  divided  between  my  children 
and  the  lawful  issue  of  any  deceased  child,  such  issue  taking  by  repre- 
sentation; payments  for  the  purpose  of  defraying  the  expenses  of 
the  education  of  any  child  at  other  than  the  public  schools .  of  this 
county  to  be  treated  as  an  advancement  in  determining  the  share  of 
such  child  or  his  or  her  issue. 

Form  No.  13u. 

APPOINTMENT  OF  SOLE  TRUSTEE  WITH  PROVISIONS  FOR  A 

SUCCESSOR. 

I  hereby  constitute  and  appoint  E.  F.,  of  the  city  of  ,  'sole 

trustee  for  the  purpose  of  carrying  out  the  provisions  of  the  trust  pro- 
vided for  in  paragraph  No.  of  this  will.  In  case  of  the  death, 

resignation  or  removal  from  office  of  said  trustee,  I  hereby  appoint 

such    person    as   may   be   designated   by    the   county   court    of , 

,  as  his  successor,  and  such  successor  shall,  on  the  approval  of 

bond  in  such  amount  as  may  be  required  by  said  court  have  and 
possess  the  same  powers  and  authority  as  I  have  granted  said  E.  F. 

Form  No.  13v. 
APPOINTMENT     OF     JOINT     TRUSTEES     WITH     POWERS     TO 

SURVIVOR  OR  SURVIVORS. 
I  hereby  constitute  and  appoint  C.  D.,  E.  G.  and  F.  H.,  of  the  city 

of ,  joint  trustees  for  the  purpose  of  carrying  out  the  provisions 

of  the  trust  provided  for  in  this  my  said  will.  Should  any  of  said 
trustees  fail  to  qualify,  or  die,  resign  or  be  removed  from  office,  the 
remaining  trustees  or  trustee  shall  have  and  possess  the  same  power 
and  authority  as  is  granted  to  them  jointly. 

(77) 


§  47  PROBATE   AND   ADMINISTRATION.  [Chap.  3 

§  47.    How  nuncupative  will  executed. 

A  nuncupative  will  must  be  executed  in  the  presence 
of  at  least  three  witnesses.  One  of  whom  the  testator 
must  request  to  bear  witness  that  such  waS  his  will, 
or  words  to  that  effect.  It  must  be  made  at  the  time 
of  the  last  sickness  of  the  deceased,  and  in  the  place 
of  his  or  her  habitation,  or  where  he  or  she  had  re- 
sided for  the  space  of  ten  days  or  more  next  before  the 
making  of  such  will,  except  when  such  person  was 
unexpectedly  taken  sick  away  from  home,  and  died 
before  he  or  she  had  returned  to  his  or  her  habitation.41 

The  essential  element  of  a  nuncupative  will  is  a  tes- 
tamentary intention,  expressed  verbally,  during  the 
"last  sickness"  in  the  presence  of  the  lawful  number 
of  competent  witnesses,  one  of  whom  has  been  espe- 
cially requested  by  the  testator  to  bear  witness  as  to 
the  disposition  to  be  made  of  the  estate.  The  wit- 
nesses must  possess  the  same  qualifications  as  the  wit- 
nesses to  a  written  will,  and  it  cannot,  therefore,  be 
established  by  the  oaths  of  persons  who  take  a  bene- 
ficial interest  thereunder.42 

By  "last  sickness"  is  meant  the  illness  immediately 
preceding  death,  when  the  physical,  and  oftentimes 
the  mental,  powers  are  fast  waning,  and  there  is  no 
expectation  of  recovery.  Unless  death  follow  very 
soon  thereafter,  or  the  testator  immediately  lapse  into 
an  unconscious  state,  and  so  remain  until  final  dis- 
solution takes  place,  his  nuncupative  will  should  be 

41  Eev.  Stats.,  c.  17,  §  27,  [1291]. 

42  Godfrey  v.  Smith,  73  Neb.  756,  103  N.  W.  450. 

(78) 


Cliap.  3]  EXECUTION  OF  WILLS.  §  47 

refused  probate.  Death  or  unconsciousness  must  fol- 
low immediately  its  execution.43 

After  six  months  have  elapsed  since  the  speaking  of 
any  testamentary  words*  the  will  cannot  be  proved 
unless  the  words  or  their  substance  were  reduced  to 
writing  within  six  days  after  they  were  spoken,  nor 
shall  letters  testamentary  be  issued,  or  the  probate  of 
any  nuncupative  will  be  granted,  until  at  least  four- 
teen days  have  elapsed  since  the  decease  of  the 
testator.44 

If  the  estate  bequeathed  or  devised  is  under  $150  in 
value,  a  strict  compliance  with  the  rule  as  to  the  place 
where  made  and  number  of  witnesses  is  not  neces- 
sary.45 If  the  estate  so  attempted  to  be  bequeathed 
exceeds  $150  in  value,  the  will  is  void  only  as  to  the 
excess.46 

Nuncupative  wills  are  not  favored  by  law,  and  a 
strict  compliance  with  the  statutory  provisions  there- 
for is  essential  to  their  validity.47 

A  nuncupative  will  cannot  revoke  a  written  will,48 
nor  convey  real  estate.49  A  nuncupative  will  of  the 
above  kind  is  not  recognized  by  the  Oregon  statutes; 
the  same  formalities  being  required  for  a  bequest  as 

43  Carroll  v.  Bonham,  42  N.  J.  Eq.  625,  9  Atl.  371;  Yarnall's  Will, 
4  Rawle  (Pa.),  46,  26  Am.  Dec.  115. 

44  Rev.  Stats.,  c.  17,  §28,   [1292]. 

45  Rev.  Stats.,  c.  17,  §  27,  [1291]. 

46  Mulligan  v.  Leonard,  46  Iowa,  692. 

47  Pollard  v.  McKenney,  69  Neb.  742,  96  N.  W.  679,  101  N.  W.  9; 
Godfrey  v.    Smith,  73    Neb.    756,   103    N.  W.  450;   Maurer  v.    Beif- 
schneider,  89  Neb.  173,  132  N.  W.  197. 

48  McCune  v.  House,  8  Ohio,  154. 

*»  Maurer  T.  Reifschneider,  S9  Neb.  173,  132  X.  W.  197.' 

(79) 


§  48  PROBATE    AND   ADMINISTRATION.  [Chap.  3 

for  a  devise,50  with  one  exception  mentioned  in  the 
succeeding  section.51 

§  48.    Soldiers'  and  mariners'  wills. 

A  soldier  in  actual  service  or  a  mariner  at  sea  may 
dispose  of  his  wages  or  other  personal  property  by  a 
nuncupative  will.52  If  it  be  established  by  a  prepon- 
derance of  testimony  that  the  disposition  of  the  prop- 
erty is  according  to  the  intent  of  the  testator,  and  that 
it  was  reduced  to  writing  within  thirty  days,  it  may 
be  probated.  The  term  "soldier"  in  actual  service 
or  in  military  service  means  one  serving  in  a  place 
where  actual  warfare  is  going  on,53  and  mariner,  any 
person  employed  on  sea-going  vessels.54  Under  the 
Oregon  statutes  a  holographic  will  executed  by  a 
mariner  at  sea  or  soldier  in  actual  service  would  be 
entitled  to  probate  as  a  will  of  personal  property.55 

Form  No.  14. 

NUNCUPATIVE  WILL. 
State  of  Nebraska, 
County, — S3. 

C.  D.,  being  first  duly  sworn,  on  oath  says  that  he  is  a  physician 
and  surgeon  residing  and  engaged  in  the  practice  of  his  profession 

in   the  city  of  ,  in  said  county;   that  he  was  well  acquainted 

with  A.  B.,  late  of  said  county,  in  his  lifetime,  and  was  his  physician 
during  his  last  illness;  that  said  A.  B.  departed  this  life  at  the  city 
of  ,  in  said  county,  on  the  day  of  ,  19 — ,  at 

50  L.    O.    L.,    §  7316. 

61  See  Montague  v.  Schieffelin,  46  Or.  413,  80  Pac.  654. 

52  Rev.  Stats.,  e.  17,  §  28,  [1292] ;  L.  O.  L.,  §  7329. 

53  Leathers  v.  Greenacre,  53  Me.  561. 

64  Bouvier's  Law  Diet. 

65  Montague  v.  Schieffelin,  46  Or.  413,  80  Pac.  654. 

(80) 


Chap.  3]  EXECUTION  OF  WILLS.  §  48 

about  the  hour  of  ,  — M.,  of  said  day;  that  about  the  hour  of 

,   — M.,   of   said   day,   affiant,   G.   M.,   and   L.   M.,   each   of   said 

county,  were  present  in  the  room  with  said  A.  B. ;  that  said  A.  B. 
was  then  and  there  in  a  very  weak  condition,  and  knew  that  death  was 
imminent,  and  then  and  there  said  to  affiant  and  said  G.  M.  and  L.  M., 
In  the  presence  of  each  of  them,  the  following  words:  "This  is  my 
will.  I  give  my  wife,  C.  B.,  all  my  property,  and  I  appoint  her  ex- 
ecutor of  my  estate.  I  want  you  to  bear  witness  that  this  is  my 
will." 

(Signed)     C.   D. 

Subscribed   in   my  presence  and  sworn  to  before   me   this  

day  of  ,  19—. 

(Signed)     H.  C.  M., 

Notary  Public. 
6— Pro.  Ad.  (81) 


CHAPTER  IV. 

TESTAMENTARY  CAPACITY. 

§  49.  Who  may  Make  Wills. 

50.  Sound  Mind. 

51.  Physical  Weakness. 

52.  Old  Age. 

53.  Insanity. 

54.  Insane   Delusions   and  Eccentricities. 

55.  Will  Executed  During  Lucid  Interval. 

56.  Drunkenness. 

57.  Lawful  Influence. 

58.  Lawful   Influence — Concluded. 

§  49.    Who  may  make  wills. 

Any  person  of  lawful  age  and  of  sound  mind  may  dis- 
pose of  his  real  and  personal  property  by  will,1  even 
though  he  may  be  blind,2  or  deaf  and  dumb.3 

In  Oregon  a  testatrix  must  be  twenty-one  years  of 

age*4  A  $v£-  A***  /^^K'  **  /% 

The  common-law  restrictions  on  the  right  of  married 
women  to  make  wills  have  been  entirely  removed.  A 
testatrix  cannot  bar  her  surviving  husband  of  his  right 
to  elect  to  take  under  the  statute.5 

§  50.    Sound  mind. 

"Sound  mind"  which  is  essential  to  the  execution 
of  a  valid  will  is  hard  to  define,  for  it  has  a  somewhat 

1  Eev.  Stats.,  c.  17,  §§  22,  25,  [1286],  [1289]. 

2  Elliott  v.  Elliott,  3  Neb.  Unof.  832,  99  N.  W.  1006;  In  re  Pickett's 
Will,  49  Or.  127,  89  Pac.  377. 

3  Brown  v.  Brown,  3  Conn.  299. 

4  L.  O.  L.,  §  7316. 

5  Eev.  Stats.,  c.  17,  §  5,   [1269];  L.  O.  L.,  §§  7318,  7315;  Runyon  v. 
Winstock,  55  Or.  203,  105  Pac.  895. 

(82) 


Chap.  4]  TESTAMENTARY    CAPACITY.  §  50 

different  meaning  when  used  in  reference  to  testa- 
mentary capacity  than  in  regard  to  general  mental 
ability.  Unimpaired  mental  vigor,  a  mind  strong  and 
able  to  comprehend  any  matter  within  the  understand- 
ing of  the  average  person,  is  not  required  of  a  testator. 
To  establish  an  exact  standard  with  which  all  minds 
must  comply  is  impossible,  and  the  law  does  not  under- 
take to  measure  a  testator's  intellect  and  define  the 
precise  quality  of  mind  and  memory  he  must  possess 
in  order  to  lawfully  dispose  of  his  property  at  his 
death.  A  person  of  almost  every  grade  of  capacity 
above  that  of  an  idiot  or  lunatic  may  make  a  will. 

The  rule  deduced  from  the  great  mass  of  authority 
is  that  he  must  have  sufficient  mental  capacity  to  know 
what  property  he  possesses,  where  it  is,  its  comparative 
values,  what  disposition  he  wishes  to  be  made  of  it, 
and  who  are  the  natural  objects  of  his  bounty,  and  that 
he  have  sufficient  memory  to  keep  these  matters  in  his 
mind  until  a  will  is  prepared  to  carry  these  intended 
dispositions  of  his  estate  into  effect.6 

The  memory  he  is  required  to  possess  must  be  active, 
and  sufficient  to  enable  him  to  collect  in  his  mind  the 

6  Hollering  v.  Kinnerberg,  78  Neb.  758,  111  N.  W.  788;  In  re  Nel- 
son's Estate,  75  Neb.  298,  106  N.  W.  326;  In  re  Sweeny's  Estate,  94 
Neb.  834,  144  N.  W.  903;  Thompson  v.  Thompson,  46  Neb.  157,  68  N.  W. 
372;  Elliott's  Estate,  3  Neb.  Unof.  832,  92  N.  W.  1006;  Hubbard  v. 
Hubbard,  7  Or.  42;  Rothrock  v.  Rothrock,  22  Or.  551,  30  Pac.  453; 
Frank  v.  Shipley,  22  Or.  194,  29  Pac.  268;  In  re  Hart's  Will  (Or.),  132 
Pac.  529;  In  re  Buren's  Will,  47  Or.  307,  83  Pac.  530;  In  re  Ames'  Will, 
40  Or.  495,  67  Pac.  737;  Stevens  v.  Myers,  62  Or.  372,  121  Pac.  437,  126 
Pac.  29;  Bundy  v.  McKnight,  48  Ind.  502;  Hampton  v.  Westcott,  49 
N.  J.  Eq.  522;  Kinne  v.  Kinne,  9  Conn.  104;  Delafield  v.  Parrish,  25 
N.  Y.  9;  Mulholland's  Estate,  217  Pa.  65,  66  Atl.  150. 

(83) 


50  PROBATE   AND   ADMINISTRATION.  [Chap.  4 

particular  elements  of  the  business  to  be  transacted, 
and  to  hold  them  there  a  sufficient  length  of  time  to 
perceive  their  obvious  relations  to  each  other,  and  to 
form  a  rational  judgment  concerning  them.7 

Ability  to  transact  ordinary  business  is  not,  accord- 
ing to  the  weight  of  authority,  a  test  of  testamentary 
capacity,  as  is  the  almost  universal  opinion  among  lay- 
men. The  courts  confine  the  ability  to  the  particular 
business  of  making  a  will.  A  person  may  not  be  able, 
either  by  reason  of  age  or  mental  weakness,  to  enter 
understandingly  into  a  business  contract,  and  be 
obliged  to  intrust  such  matters  to  a  guardian,  but  at 
the  same  time  have  sufficient  mind  and  memory  to  know 
and  thoroughly  understand  the  amount  and  extent  of 
his  property  and  the  disposition  he  wishes  to  make  of 
it.8  Mental  weakness  or  a  pronounced  lack  of  mental 
capacity  are  not,  of  themselves,  inconsistent  with  tes- 
tamentary capacity,9  unless  they  go  so  far  as  to  dis- 
qualify the  party  from  knowing  or  appreciating  the 
act  in  which  he  is  engaged.10 

A  lesser  degree  of  mental  ability  is  permitted  where 
the  estate  is  small  or  the  will  simple  than  in  cases  of 

7  In   re   Downing's   Will,   118   Wig.   581,   95   N.   W.   876;    Burney   v. 
Torrey,   100  Ala.  157,   14  South.  685;   Prather  v.  McCleland,  76  Tex. 
574,  13  S.  W.  543. 

8  In  re  Ames'  Will,  40  Or.  495,  67  Pac.  737;  In  re  Cowdery,  77  Vt. 
539,  60  Atl.  149;  Rice  v.  Rice,  50  Mich.  448,  15  N.  W.  545;  Frazer  v. 
.Tennison,  42  Mich.  220,  3  N.  W.  882;  Jackson  v.  Hardin,  83  Mo.  175; 
Draper's  Estate,  215  Pa.  314,  64  Atl.  520;  Hathorne  v.  King,  8  Mass. 
371;  Comstock  v.  Hadlyme,  8  Conn.  254. 

»  Pierce  v.  Pierce,  38  Mich.  412;  Frazer  v.  Jennison,  42  Mich.  220, 
3  N.  W.  882. 

10  Manatt  v.  Scott,  106  Iowa,  203,  76  N.  W.  717. 

(84) 


Chap.  4]  TESTAMENTARY    CAPACITY.  §§51,52 

large  estates  or  a  complicated  distribution  of  the  prop- 
erty is  attempted.11 

§  51.     Physical  weakness. 

The  law  recognizes  the  fact  that  many  people  delay 
making  their  wills  until  warned  by  sickness  that  the 
end  is  at  hand.  The  rule  is  that  when  the  testator  has 
not  reached  old  age,  and  there  is  no  evidence  of  undue 
influence  exerted  upon  him,  or  any  circumstances  tend- 
ing to  show  the  same,  physical  weakness,  provided  it 
is  not  such  as  to  prevent  him  from  expressing  his  in- 
tentions, so  that  they  can  be  understood,  will  not  affect 
his  testamentary  capacity.12  A  testator  who  is  very 
weak  and  fast  losing  strength,  but  still  possessed  of 
sufficient  mental  and  physical  ability  to  intelligently 
discuss  questions  relating  to  the  condition  and  amount 
of  his  estate  and  his  domestic  relations,  and  then  dic- 
tate the  terms  of  his  will,  has  undoubted  testamentary 
capacity.13 

§  52.    Old  age. 

Old  age,  per  se,  is  not  inconsistent  with  unquestioned 
testamentary  capacity.14  Age  and  physical  and  mental 
weakness  which  sometimes  accompany  it  may  destroy 
such  capacity  where  each  standing  by  itself  would  be 

11  Sheldon  v.  Dow,  1  Dem.  Sur.  (N.  Y.)  502;  Dillman  v.  McDaniel, 
222  111.  276,  78  N.  E.  591;  In  re  Silverthorne's  Will,  68  Wis.  372,  32 
N.  W.  287. 

12  Rothrock   v.   Rothrock,   22   Or.   551,  30   Pac.   453;   Stackhouse   v. 
Horton,  15  N.  J.  Eq.  202. 

13  Stackhouse  v.  Horton,  36  Neb.  393,  54  N.  W.  670;  In  re  Hobbins, 
41  Mont.  39,  108  Pac.  7;  Mullan's  Will,  140  Wis.  291,  122  N.  W.  723. 

14  Chrisman  v.  Chrisman,  16  Or.  127,  18  Pac.  6;  Clark  v.  Ellis,  9  Or. 
129;  Collins  v.  Townley,  21  N.  J.  Eq.  353;  In  re  Humphrey,  26  N.  J. 
Eq.  513. 

(85) 


§  52  PKOBATE   AND    ADMINISTRATION.  [Chap.  4 

entirely  insufficient,15  and  it  is  an  important  element 
in  connection  with  undue  influence,  requiring  a  close 
scrutiny  of  all  the  surroundings  and  conditions.16  The 
fact  that  the  aged  testator  is  suffering  from  a  stroke  of 
paralysis  or  apoplexy17  does  not  necessarily  affect  his 
mental  condition. 

Though  the  mental  capacity  of  the  testator  may  be 
weakened  by  age,  or  age  and  disease,  if  he  yet  have 
sufficient  capacity  to  comprehend  the  act  which  he  is 
performing,  and  strength  of  mind  to  form  a  fixed  in- 
tention in  regard  to  the  disposition  of  his  property, 
and  vigor  to  carry  out  that  intention,  his  will  would  be 
valid.18  Forgetfulness  of  recent  events  is  not  incapa- 
city.19 

It  often  happens  that  aged  and  infirm  persons,  who 
seem  to  have  lost  nearly  all  recollection  of  different 
subjects,  when  their  attention  is  fixed  on  their  busi- 
ness, property  or  family  relations,  have  an  exception- 
ally clear,  fixed  and  distinct  understanding  of  their 
property  and  what  they  want  to  do  with  it.20 

It  was  said  by  Chancellor  Kent  that  "the  will  of  an 
aged  man  ought  to  be  regarded  with  great  tenderness 

15  Hall  v.  Perry,  87  Me.  569,  33  Atl.  160. 

16  Wilson  v.  Mitchel,  101  Pa.  495;  Jackson  v.  Hardin,  83  Mo.  175; 
Schneider  v.  Vosburgh,  143  Mich.  476,  106  N.  W.  129. 

17  In   re  Wilson,   78  Neb.   758,   111   N.  W.   788;   In  re   Wheaton,  68 
N.  J.  Eq.  562,  59  Atl.  886. 

18  Thompson   v.  Thompson,  46   Neb.   157,  68   N.  W.   372;   Elliott  v. 
Elliott,  3  Neb.  Unof.  832,  92  N.  W.  1006;  In  re  Nelson,  75  Neb.  298, 
106  N.  W.  326;  Stull  v.  Stull,  1  Neb.  Unof.  380,  96  N.  W.  196;  Ames' 
Will,  40  Or.  595,  67  Pac.  737;  Perkins  v.  Perkins,  116  Iowa,  253,  90 
N.  W.  55;  In  re  Buren's  Will,  47  Or.  397,  83  Pac.  530;  Cline's  Will, 
24  Or.  178,  33  Pac.  542. 

19  Eddy's  Case,  32  N.  J.  Eq.  701. 

20  Taylor,  M«d.  Jur.,  336. 

(86) 


Chap.  4]  TESTAMENTARY   CAPACITY.  §  53 

when  it  appears  not  to  have  been  obtained  by  fraudu- 
lent acts,  but  contains  those  very  dispositions  which 
the  circumstances  of  his  situation  and  the  course  of  the 
natural  affections  dictated."21 

§  53.    Insanity. 

Insanity  may  be  defined  as  "derangement  of  intel- 
lect." A  distinction  exists  between  insanity  and 
idiocy.  The  former  embraces  those  unfortunate  per- 
sons who  have  lost  either  in  whole  or  part  the  reason- 
ing faculties  they  once  possessed,  while  the  latter  never 
had  any  reasoning  faculties.  The  term  "non  compos 
mentis"  applies  to  both. 

The  statement  is  frequently  made  in  the  books  that 
the  will  of  an  insane  person  is  worthless.  This  is  not 
strictly  true.  The  medical  profession  recognizes  dif- 
ferent varieties  and  phases  of  mental  derangement, 
many  of  which  are  only  partial  and  affect  certain  acts. 
A  person  may  be  partially  deranged  and  yet  possess 
unquestioned  testamentary  capacity.  The  true  test  of 
that  insanity  which  renders  a  will  invalid  is  the  exist- 
ence of  delusions  which  prevent  the  testator  from  in- 
telligently comprehending  his  estate,  and  the  persons 
who  would  be  naturally  expected  to  be  the  objects 
of  his  bounty.  An  insane  delusion  is  a  state  of  facts 
existing  in  the  mind  of  a  person  which  have  no  actual 
existence  except  in  his  imagination,  and  which  can- 
not be  removed  by  any  amount  of  reasoning  and 
argument.22 

21  Van  Alst  v.  Hunter,  5  Johns.  Ch.  (N.  Y.)  148. 

22  Bundy  v.  McKnight,  48  Ind.  503;  Stanton  v.  Weatherax,  16  Barb. 
(N.  Y.)   259;  Florey's  Exrs.  r.  Florey,  24  Ala.  241;   Middleditch  v. 

(87) 


§  54  PROBATE   AND   ADMINISTRATION.  [Chap.  4 

If  these  delusions  are  in  regard  to  other  matters  than 
his  family  relations  and  those  who  would  be  the  prob- 
able objects  of  his  bounty  or  his  estate  generally,  they 
would  not  incapacitate  him  from  making  a  valid  will. 
The  delusion  must  be  in  regard  to  some  particular 
matter  which  directly  affects  the  testamentary  act.23 

A  believer  in  some  occult  or  speculative  form  of  so- 
called  religious  doctrine  is  not  incompatible  with  tes- 
tamentary capacity,24  unless  the  effect  of  it  is  to  unseat 
the  judgment  and  dethrone  the  reasoning  powers,  in 
which  event  his  will  should  be  denied  probate.25 

§  54.    Insane  delusions  and  eccentricities. 

As  a  result  of  the  rule  that  insanity,  in  order  to  viti- 
ate a  will,  must  be  in  regard  to  the  testamentary  act 
itself,  it  follows  that  an  undoubted  monomaniac  may 
be  capable  of  disposing  of  his  property  by  will,26  and 

Williams,  45  N.  J.  Eq.  726,  17  Atl.  826;  Smith  v.  Smith,  48  N.  J.  Eq. 
566;  Haines  v.  Hayden,  95  Mich.  332,  54  N.  W.  911. 

23  McClary  v.  Stull,  44  Neb.  175,  62  N.  W.  501;  Potter  v.  Jones,  20 
Or.  239,  25  Pac.  765;  Eice  v.  Rice,  50  Mich.  448,  15  N.  W.  545;  Lee  v. 
Scudder,  31  N.  J.  Eq.  633;  Chaffin's  Will,  32  Wis.  557. 

24  Robinson  v.  Adams,  62  Me.  369;  McClary  v.  Stull,  44  Neb.  175, 
62  N.  W.  501;  Connor  v.  Skaggs,  213  Mo.  334,  111  S.  W.  1132. 

25  Taylor   v.   Trich,   165   Pa.   586,   30   Atl.   1053;    White's   Will,    121 
N.  Y.  406,  24  N.  E.  935;  Orchardson  v.  Cofield,  171  111.  14,  59  N.  E. 
197. 

20  Dunham's  Appeal,  27  Conn.  192;  Benois  v.  Murrin,  58  Mo.  307; 
Johnson  v.  Johnson,  105  Md.  81,  65  Atl.  918;  In  re  Segur,  71  Vt.  224, 
44  Atl.  342;  Fraser  v.  Jennison,  42  Mich.  231,  3  N.  W.  882;  Stull  v. 
Stull,  1  Neb.  Unof.  389,  96  N.  W.  200;  Smith  v.  Smith,  48  N.  J.  Eq. 
566,  25  Atl.  11;  Tawney  v.  Long,  76  Pa.  106;  Lee  v.  Scudder,  31  N.  J. 
Eq.  633;  Ballantine  v.  Proudfoot,  62  Wis.  217,  22  N.  W.  392. 

(88) 


Chap.  4]  TESTAMENTABY    CAPACITY.  §  54 

that  a  man  who  has  displayed  judgment,  skill  and  fore- 
sight in  the  management  of  a  large  business,  whose 
mental  ability  has  never  been  questioned,  may  be 
wholly  incompetent  to  make  a  will  on  account  of  insane 
delusions  in  regard  to  the  disposition  of  his  property.27 

Eccentricities,  either  in  belief  or  conduct,  which  can- 
not be  considered  as  sufficient  of  themselves  to  prove 
insanity,  do  not  vitiate  a  will.  A  person  of  that  char- 
acter has  power  to  change  his  conduct  or  opinion,  while 
an  insane  person  has  not  the  ability  to  do  so.  Hobbies, 
marked  peculiarities  of  habit,  thought  and  conduct, 
and  moral  delinquencies  may  result  from  a  person's 
surroundings,  ignorance,  or  lack  of  opportunity,  and 
are  consistent  with  mental  capacity.28 

A  careful  distinction  should  be  drawn  between  delu- 
sions and  prejudice.  An  undue  and  unjust  prejudice 
which  has  some  reason  for  its  existence  is  not  sufficient 
to  invalidate  a  will.29  Such  prejudice,  based  on  no 
facts  whatever,  and  without  any  apparent  reason  for 
its  existence,  is  a  delusion.30 

27  American    Bible    Society    v.    Price,    115    111.    623,    5    N.    E.    126; 
American  Seaman's  Friend  Society  v.  Hopper,  33  N.  Y.  619;  Denson  v. 
Beasley,  35  Tex.  191. 

28  Winn  v.  Grier,  217  Mo.  420,  117  S.  W.  48;  Bennett  v.  Hibbert,  88 
Iowa,  154,  55  N.  W.  93;  Lee  v.  Lee,  4  McCord  (S.  C.),  183;  Archambault 
v.  Blanchard,  198  Mo.  384.  95  S.  W.  834. 

29  In  re  Clapham's  Estate,  73  Neb.  492,  103  N.  W.  61;  Stevens  v. 
Myers,  62  Or.  351,  121  Pac.  434,  126  Pac.  29;  Skinner's  Will,  40  Or. 
571,  67  Pac.  951;  Potter  v.  Jones,  20  Or.  239,  25  Pac.  769;  Clausenius 
v.  Clausenius,  179  111.  545,  53  N.  E.  1006. 

so  Bean  v.  Bean,  144  Mich.  599,  108  N.  W.  369;  Fulton  v.  Freeland, 
219  Mo.  494,  118  S.  W.  12. 

(89) 


§§55,56  PROBATE   AND   ADMINISTRATION.  [Chap.  4 

§  55.    Will  executed  during  lucid  interval. 

When  insanity  affecting  all  the  mental  faculties  has 
been  proved  to  exist,  it  is  generally  presumed  to  have 
continued  until  evidence  is  introduced  to  the  contrary.31 
The  medical  profession  has  known  it  to  be  a  fact  that 
in  many  of  apparently  the  worst  cases  of  insanity,  the 
result  of  certain  diseases  of  the  brain,  the  patient  has 
lucid  intervals  when  his  mind  is  capable  of  compre- 
hending his  property  and  understanding  the  nature 
and  character  of  the  testamentary  act.  A  will  which 
shows  on  its  face  no  evidence  of  mental  derangement, 
rational  in  its  terms  and  provisions,  evincing  a  knowl- 
edge of  testator's  property  and  of  those  who  would 
naturally  be  the  objects  of  his  bounty,  and  prepared 
according  to  the  directions  of  the  testator,  will  be 
upheld.32 

§  56.    Drunkenness  and  use  of  drugs. 

A  person  while  under  the  influence  of  intoxicating 
liquors  or  narcotics  to  such  an  extent  as  to  be  incapable 
of  knowing  what  he  is  doing  cannot  make  a  valid  will. 
The  use  of  intoxicating  liquors  to  excess  will  not  de- 
prive one  of  testamentary  capacity  unless  such  in- 
temperance be  long  continued,  impairing  the  mind, 

31  State  v.  Reddick,  7  Kan.  143;   Carpenter  v.  Carpenter,  8  Bush 
(Ky.),  283. 

32  Crowninshield  T.  Crowninshield,   2  Gray   (Mass.),  524;   Little   v. 
Little,   13   Gray   (Mass.),   264;   Chandler  v.  Barrett,   21   La.   Ann.   58; 
Bitner  v.   Bitner,   65   Pa.   347;   In   re   Johnson's  Estate,   57   Cal.   529; 
Clarke  (Cartwight)  v.  Cartwight,  1  Phill.  90.     In  the  latter  case  the 
testatrix  was  violently  insane  and  had  to  be  kept  under  close  restraint. 
During  a  lucid  interval  she  wrote  out  her  will,  which  was  so  rational 
in  its  terms  and  displayed  such  an  accurate  knowledge  of  the  charac- 
ter of  her  estate  and  just  disposition  of  it,  that  the  will  was  allowed. 

(90) 


Chap.  4]  TESTAMEXTABY    CAPACITY.  §  57 

destroying  its  faculties,  and  producing  a  permanent 
derangement.33 

The  rule  in  regard  to  the  drug  habit  is  the  same.34 

§  57.    Lawful  influence. 

The  very  nature  of  a  will  requires  its  execution  to 
have  been  a  free,  voluntary  act,  consequently  any 
fraudulent  trick  or  device  practiced  upon  the  testator 
in  the  execution  of  his  will,  or  an  influence  exerted 
upon  him  which  prevents  him  from  exercising  a  free 
and  untrammeled  discretion,  invalidates  his  will.35 
Not  all  influence  exerted  upon  a  testator  in  the  making 
of  his  will  is  undue  or  unlawful,  provided  such  influence 
does  not  subvert  the  free  agency  of  the  testator.  In- 
fluence obtained  by  appeals  to  one's  judgment,  sympa- 
thies, discretion,  better  nature,  his  sense  of  charity  and 
religious  principles  is  legitimate  unless  it  has  become 
so  persistent  as  to  entirely  destroy  his  powers  of  dis- 
cretion.36 Lawful  influence,  which  may  be  defined  as 
that  which  arises  from  legitimate  family  and  social 
relations,  cannot  but  exert  a  powerful  influence  over 
the  mind  of  the  testator,  ar;d  show  itself  in  the  terms 
of  his  will.  Such  influences  often  produce  great 

33  Howe  v.  Richards,  112  Iowa,  220,  83  N.  W.  911;  Lang's  Estate, 
65  Cal.  19    2  Pac.  491;  Pierce  v.  Pierce,  38  Mich.  418. 

34  In  re  Gilham,  64  N.  J.  Eq.  715,  52  Atl.  690;  Miller  v.  Oestrich,  157 
Pa.  264,  27  Atl.  742. 

35  Children's   Aid   Soc.   v.   Loveridge,    70   N.   Y.   387;    McMahon   v. 
Ryan,  20  Pa.   329;   Rollwagen  v.   Rollwagen,  63   N.  Y.  519;   Clyde  v. 
Anderson,  49  Mo.  37. 

36  Schofield  v.  Walker,  58  Mich.  96,  24  N.  W.  624;  Wise  v.  Foote. 
81   Ky.    10;    Bundy   v.   McKnight,   48   Ind.   502;    Sunderland   v.   Hood. 
84  Mo.  293;   Monroe  v.  Barclay.  17  Ohio  St.  302;  Orr  v.  Pennington, 
93  Va.  268,  24  S.  E.  928;  Mullon  v.  Walker,  69  Iowa,  92,  28  N.  W.  452. 

(91) 


§  58  PROBATE   AND   ADMINISTRATION.  [Chap.  4 

irregularities  in  the  disposition  of  property,  and  work 
apparent  hardships,  but  the  law  cannot  criticise  and 
measure  their  actual  effect,  and  therefore  allows  them.37 
Neither  advice,  argument  or  persuasion  will  avoid  a 
will  made  freely  from  conviction,  though  it  may  con- 
clusively appear  that  it  would  never  have  been  made 
were  not  such  means  adopted  to  bring  about  its  execu- 
tion, as  where  a  will  was  obtained,  by  the  arguments 
of  a  clergyman,  disinheriting  a  person's  immediate 
family,  and  giving  the  entire  estate  to  a  deserving  char- 
itable institution,  it  appearing  that  neither  the  clergy- 
man nor  any  member  of  his  family  profited  thereby.38 

§  58.    Lawful  influence — Concluded. 

A  wife  may  legitimately  use  her  influence  to  cause 
her  husband  to  make  a  will  in  her  favor,  unless  such 
influence  is  so  exerted  as  to  secure  advantages  to  her- 
self, to  the  injury  of  others,  and  practically  substitute 
her  will  for  his.  The  confidential  relation  of  husband 
and  wife  does  not  per  se  raise  a  suspicion  of  undue 
influence;  but  a  will  obtained  through  the  influence  of 
one  living  in  unlawful  relations  with  another  is  in- 
valid, even  though  the  degree  of  influence  is  not  as 
great  as  that  of  a  husband  over  a  wife,  or  of  a  wife 
over  a  husband.39  In  the  Kessinger  case,  the  court 
say  that:  "We  are  of  opinion  that  *  *  an  influ- 

37  Dean   v.   Negley,   41   Pa.   312;    Latham   v.   Udell,   38   Mich.    238; 
Pierce  v.  Pierce,  38  Mich.  412. 

38  Maynard  v.  Vinton,  59  Mich.  139,  26  N.  W.  401;  McCullock  v. 
Campbell,  49  Neb.  367,  5  N.  W.  590. 

39  Dean   v.  Negley,  41  Pa.  313;   Boggs  v.   Boggs,  62   Neb.  274,   87 
N.  W.  39;  Kessinger  v.  Kessinger,  37  Ind.  341;  Waters  v.  Eeed  (Mich.), 
88  N.  W.  394. 

(92) 


Chap.  4]  TESTAMENTARY    CAPACITY.  §  58 

ence,  when  exercised  by  a  wife,  might  be  lawful  and 
legitimate,  but  which,  if  exercised  by  a  person  occupy- 
ing merely  an  adulterous  relation,  might  be  undue  and 
illegitimate.  This  must  be  so  from  the  very  nature  of 
civilized  human  society."  The  two  classes  of  influ- 
ence are  often  distinguished  by  the  means  of  which 
they  are  obtained.  That  which  is  obtained  by  honest 
intercession  and  persuasion,  arguments  addressed  to 
the  understanding,  appeals  to  one's  better  nature,  is 
always  lawful,40  "that  which  is  obtained  by  flattery, 
importunity,  superiority  of  will,  mind  or  character,  or 
by  any  art  soever  that  human  thought,  ingenuity  or 
cunning  can  employ,  which  would  give  dominion  over 
the  will  of  the  testator  to  such  an  extent  as  to  destroy 
free  agency,  or  constrain  him  to  do,  against  his  will, 
what  he  is  unable  to  refuse,  is  undue."41 

40  i  Jarman,  Wills,  37. 

«  Schofield  v.  Walker,  58  Mich.  106,  14  N.  W.  624. 

(93) 


CHAPTER  V. 

REVOCATION  OF  WILLS. 

§  59.  Definition. 

60.  How  Wills  Eevoked — Statutory  Provisions. 

61.  Eevocation  of  Will  by  Destroying  It. 

62.  Eevocation  by  Executing  New  Will. 

63.  Implied  Revocations. 

64.  Changes  in  the  Estate. 

65.  Death  of  Devisee  or  Legatee. 

66.  Revocation  by  Marriage. 

67.  Revocation  by  Birth  of  Issue. 

68.  Eevocation  by  Divorce. 

69.  Eevivor  of  Wills. 

§  59.    Definitions. 

The  revocation  of  a  will  is  the  annulling  or  repealing 
of  it,  thereby  depriving  it  entirely  of  any  power  or 
effect.  The  one  peculiarity  which  distinguishes  it 
from  other  legal  instruments  is  that  the  testator  is  not 
precluded  from  making  any  other  disposition  of  his 
property,  either  by  sale,  gift  or  subsequent  will.  A 
man  may  make  as  many  wills  and  codicils,  provided 
he  is  of  sound  mind,  as  he  wishes,  but  no  contract  or 
agreement  making  a  will  previously  executed  irrevo- 
cable can  be  enforced.1 

§  60.    Statutory  provisions  for  revocation  of  wills. 

No  will  or  any  part  thereof  can  be  revoked  unless  by 
burning,  tearing,  canceling  or  obliterating  the  same, 
with  the  intention  of  revoking  it,  by  the  testator,  cr  by 
some  person  in  his  presence  and  by  his  express  direc- 
tion, or  by  some  other  will  or  codicil  in  writing,  signed, 

l  Mandelebam  v.  McDonnell,  29  Mich.  78. 

(94) 


Chap.  5]  REVOCATION  OF  WILLS.  §  61 

attested  and  subscribed  in  the  same  manner  provided 
by  law  for  the  execution  of  wills,  and  by  such  changes 
in  the  circumstances  and  conditions  of  the  testator 
as  constitute  an  implied  revocation.2 

Revocation  by  changes  in  the  family  relations  in 
Oregon  are  mostly  governed  by  statute.3 

§  61.    Revocation  of  will  by  destroying  it. 

In  order  to  revoke  a  will  by  destroying  it  there  must 
be  a  manual  act  of  destruction,  either  burning,  tear- 
ing, canceling  or  obliterating  of  the  will  itself  by  the 
testator  or  under  his  direction,  practically  putting  it 
out  of  existence.  If  the  destruction  is  not  complete, 
some  necessary  or  material  portion  of  it,  such  as  the 
signature  of  the  testator  or  witnesses,  or  the  names  of 
the  devisees  or  legatees,  must  be  completely  obliter- 
ated or  destroyed.  Throwing  a  will  into  a  waste 
basket  or  leaving  it  with  worthless  papers  is  not  suffi- 
cient.4 Cutting  out  the  names  of  only  a  part  of  the 
beneficiaries  or  of  the  executor  only  is  not  a  total  revo- 
cation.5 

Canceling  by  drawing  lines  through  a  material  part 
but  leaving  it  so  it  can  still  be  read,  animo  revocandi, 
works  a  revocation.6  If  the  will  consists  of  several 
pages  fastened  together,  a  tearing  out  of  one,  without 

2  Rev.  Stats.,  c.  17,  §  31,  [1295];  L.  O.  L.,  §  803. 

3  Sections  65,  66,  67,  post. 

4  Hoit  v.  Hoit,  63  N.  H.  475,  3  Atl.  504;  Fellows  v.  Allen,  60  N.  U. 
439. 

5  In  re  Brown,  1  B.  Mon.  (Ky.)  56,  35  Am.  Dec.  174;  Wells  v.  Wells, 
4  T.  B.  Mon.  (Ky.)  152,  16  Am.  Dec.  150. 

6  Townsend    v.    Howard,    86    Me.    285,    29   Atl.    1077;    Mclntyre    v. 
Melntyre,  120  Ga.  67,  47  S.  E.  501. 

(95) 


§  61  PBOBATE   AND   ADMINISTRATION.  [Chap.  5 

destroying  it,  will  not  revoke  the  will.7  The  intent  of 
the  testator  is  a  most  important  element  to  be  consid- 
ered in  determining  whether  the  tearing,  canceling  or 
obliterating  was  done  by  him  for  the  purpose  of  de- 
stroying the  will,  but  of  itself  is  not  sufficient.  It  must 
be  accompanied  by  some  manual  act.8 

If  he  is  prevented  from  destroying  the  will  by  force 
and  violence,  it  remains  valid  unless  supplanted  by  a 
new  one.9  If  he  directs  another  party  to  destroy  the 
will,  but  by  reason  of  fraud  practiced  upon  him  it  is 
preserved,  it  is  revoked  unless  he  subsequently  ascer- 
tains the  facts  and  apparently  acquiesces  in  its  pres- 
ervation.10 

Under  the  Oregon  statute  the  consent  of  the  testator 
to  the  destruction  of  his  will  by  another  party  and  the 
fact  of  such  destruction  must  be  proved  by  two  wit- 
nesses.11 

The  fact  that  a  will  known  to  have  been  in  the  pos- 
session of  the  testator  cannot  be  found  raises  a  pre- 
sumption that  he  destroyed  it  animo  revocandi,12  but 
evidence  of  his  condition,  surrounding  circumstances, 
and  of  declarations  Toy  him  are  admissible  to  show  a 
contrary  intention.13 

7  Woodruff  v.  Hundley,  127  Ala.  640,  29  South.  98. 

8  In   re  Frothingham,   75   N.  J.   Eq.   205,   71   Atl.  695;   McNagle  v. 
Parker,  75  N.  H.  139,  71  Atl.  637. 

»  Kent  v.  Mahaffy,  10  Ohio  St.  204;   Runkle  v.  Gates,  11  Ind.  95; 
Andrew  v.  Motley,  12  Com.  B.,  N.  S.,  514,  524. 
10  Graham  v.  Burch,  53  Minn.  17,  55  N.  W.  64. 
"  L.  O.  L.,  §  803. 

12  In  re  Miller's  Will,  49  Or.  456,  90  Pac.  1002. 

13  In  re  Miller's  Will,  supra;  Steel  v.  Price,  5  B.  Mon.  (Ky.)  53. 

(96) 


Chap.  5]  BEVOCATIOX  or  WILLS.  §§G2,  63 

§  62.    Revocation  by  executing  new  will. 

Unless  a  former  will  has  been  revoked  by  destroying 
it,  it  is  not  entirely  revoked  by  a  later  one,  unless  such 
later  will  contains  a  revocation  clause,  or  its  provisions 
be  entirely  inconsistent  with  those  of  the  older  instru- 
ment.14 If  the  two  instruments  are  only  partially  con- 
flicting, the  later  revokes  the  former  only  in  so  far  as 
the  two  are  inconsistent.15  Both  are  entitled  to  pro- 
bate.16 If  it  disposes  of  the  entire  estate  in  an  entirely 
different  manner  than  the  former  will,  it  works  a  com- 
plete revocation  of  the  older  instrument,  though  it 
contains  no  revocation  clause,  and  the  older  will  is  still 
in  existence.17 

It  therefore  follows  that  not  only  must  the  execution 
of  the  later  will  be  proved,  but  it  must  also  be  shown 
that  it  contained  a  revocation  clause  or  was  entirely 
inconsistent  with  the  older  will.18 

§  63.    Implied  revocations. 

Implied  revocations  are  those  that  arise  by  opera- 
tions or  implication  of  law  upon  the  happening  of  cer- 
tain events.  The  statutes  do  not  specify  or  designate 

14  Brant  v.  Wilson,  8  Cow.  (N.  Y.)  56;  Lane  v.  Hill,  68  N.  H.  275, 
44  Atl.  393. 

15  Williams  v.  Miles,  68  Neb.  463,  94  N.  W.  705,  96  N.  W.  501. 

16  Marston  v.  Marston,  17  N.  H.  503;  Nelson  v.  McGiffert,  3  Barb. 
Ch.  (N.  Y.)  170. 

17  Kern  v.  Kern,  154  Ind.  29,  55  N.  E.  1004;  Schillinger  v.  Bawek, 
135  Iowa,  131,  112  N.  W.  210. 

18  Williams  v.  Miles,  68  Neb.  463,  94  N.  W.  705,  96  N.  W.  501;  73 
Neb.  193,  205,  206,  102  N.  W.  482,  106  N.  W.  769;  89  Neb.  455,  127 
N.  W.  904,  121  N.  W.  1135;  Hayes  v.  Nicholas  72  Tex.  481,  10  S.  W. 
588;  Stevens  v.  Hope,  52  Mich.  65,  17  N.  W.  698;  Pickens  v.  Davis,  134 
Mass.  252;   Wallis  v.  Wallis,   114  Mass.  510;   Lane   v.  Hill,  68  N.  H. 
175,  49  Atl.  493;  In  re  Cunningham,  38  Minn.  169,  36  N.  W.  269. 

7 — Pro.  Ad.  (97) 


§  64  PROBATE   AND    ADMINISTRATION.  [Chap.  5 

all  the  subsequent  changes  in  the  condition  and  circum- 
stances of  the  testator  that  will  produce  a  revocation 
of  his  will;  but  it  is  for  the  court  and  not  a  jury1'1 
to  determine,  from  the  facts  of  each  particular  case, 
under  the  rules  and  forms  of  law,  whether  the  testator 
intended  the  will  to  stand,  notwithstanding  the  changes 
in  his  conditions  and  circumstances.  The  doctrine  of 
revocation  by  implication  is  based  upon  a  presumed 
alteration  of  intention  arising  from  the  changed  condi- 
tions and  circumstances  of  the  testator,  or  on  the  pre- 
sumption that  the  will  would  have  been  different  had  it 
been  executed  under  the  altered  conditions  and  circum- 
stances. An  entire  revocation  by  implication  of  law 
extends  to  but  few  cases.  Changes  in  circumstances 
and  family  relations  often  work  a  partial  revocation, 
and  the  will  in  other  respects  stands  as  it  was  written.20 
They  are  of  two  kinds:  First,  those  arising  from 
changes  in  the  estate  of  the  testator;  second,  those 
arising  from  a  change  in  his  family  or  domestic  rela- 
tions. 

§  64.    Changes  in  the  estate. 

A  will  which  disposes  of  all  of  testator's  estate  by 
specific  bequests  and  devises  is  entirely  revoked  by  an 
absolute  sale  of  such  property,  for  there  is  nothing  left 
for  the  legatees  or  devisees  to  receive.21  A  sale  of  a 

19  Dickinson  v.  Aldrich,  79  Neb.  198,  112  N.  W.  293. 

20  Baacke  v.  Baacke,  50  Neb.  18,  69  N.  W.  303;  4  Kent,  Com.,  521; 
Greenleaf,  Ev.,  684. 

21  In  re  Sprague's  Estate,  125  Mich.  357,  84  N.  W.  293;  Hawes  v. 
Humphrey,  9  Pick.   (Mass.)   360;   Adams  v.  Winne,  7  Paige   (N.  Y.), 
97;   Bowen  v.  Johnson,  6  Ind.   110;   Collup  v.  Smith,  89  Va.  258,  15 
S.  E.  584. 

(98) 


Chap.  5]  EE VOCATION  OF  WILLS.  §  64 

part  of  the  property  devised  or  bequeathed  is  a  revoca- 
tion pro  tan-to  only.22  Such  sale,  in  order  to  work  an 
entire  or  partial  revocation,  must  be  absolute.  If  any 
interest  or  equity  remains,  it  passes  to  the  legatees  or 
devisees.  The  beneficiaries  take  subject  to  the  bond, 
covenant  or  agreement  for  conveyance,23  or  if  the  prop- 
erty has  been  encumbered  by  a  mortgage  subsequent 
to  the  execution  of  the  will,  subject  to  such  mortgage.24 
The  same  rule  applies  to  a  deed  of  trust  containing  a 
power  of  revocation,  which  is  subsequently  exercised 
and  the  deed  revoked.25  It  has  been  held  that  a  deed 
of  gift  of  property,  without  consideration,  to  the 
devisee  under  the  will,  will  not  revoke  the  will  unless 
the  contents  of  the  deed  itself  show  such  intention.26 

If  the  will  contains  a  residuary  clause,  the  proceeds 
of  the  sale  of  the  specified  property,  if  still  belonging 
to  the  testator,  pass  as  a  part  of  the  residuary  estate, 
as  a  general  rule.27 

Any  change  in  the  testator's  estate,  such  as  a  general 
increase  or  decrease  in  the  value  of  the  same,  conver- 
sion of  realty  into  personalty,  or  of  personalty  into 
realty,  never  operates  to  wholly  set  aside  a  will,  since 
the  testator,  by  permitting  it  to  remain  uncanceled,  in 
effect  reaffirms  it  from  day  to  day  as  long  as  he  has 

22  Brown  v.  Thorndike,  15  Pick.   (Mass.)   388;  Terry  v.  Edminster, 
9  Pick.  (Mass.)  355;  Fellows  v.  Allen,  60  N.  H.  439;  Warren  v.  Taylor, 
56  Iowa,  182,  9  N.  W.  128;  Forney's  Estate,  161  Pa.  209,  28  Atl.  1086. 

23  Watson  v.  McClench,  57  Or.  457,  110  Pac.  484;  L.  O.  L.,  §  7323. 

24  Kyger  v.  Kiley,  2  Neb.  28;  Hurley  v.  Estes,  6  Neb.  391;  Union 
Mutual  Life  Ins.  Co.  v.  Lovitt,  10  Neb.  301,  4  N.  W.  986. 

25  Morey  v.  Sohier,  63  X.  H.  507,  3  Atl.  636. 

26  Aubert's  Appeal,  119  Pa.  48.  12  Atl.  810. 

27  Doe  d.  Cholmondley  v.  Maxey,  12  East,  589;  Ballard  T.  Carter, 
6  Pick.  (Mass.)  112;  Holt  v.  Holt,  63  N.  H.  475,  3  Atl.  604. 

(99) 


§  65  PROBATE  AND   ADMINISTRATION.  [Cliap.  5 

testamentary  capacity;28  nor  can  a  revocation  be  im- 
plied from  the  acquisition  by  the  testator  of  property 
not  disposed  of  by  the  instrument.29  Revocation  of  a 
will  by  parting  with  the  property  devised  or  be- 
queathed is,  as  a  general  rule,  absolute,  and  a  subse- 
quent acquisition  of  the  property,  it  has  been  held, 
does  not  revive  or  republish  it.  It  depends,  however, 
on  the  terms  of  the  instrument  itself.30 

A  bond,  covenant  or  agreement  made  for  a  valuable 
consideration  by  a  testator  to  convey  any  property  de- 
vised or  bequeathed  does  not  revoke  the  devise  or  be- 
quest. The  property  passes  subject  to  the  provisions 
of  such  bond,  covenant  or  agreement  which  the  holder 
thereof  may  enforce  by  specific  performance,31  nor  is 
a  charge  or  encumbrance  on  either  real  or  personal 
estate  for  the  purpose  of  securing  the  payment  of 
money  or  the  performance  of  an  agreement,  the  prop- 
erty passing  subject  to  the  same.32 

§  65.    Death  of  devisee  or  legatee. 

The  death  of  a  devisee  or  legatee  who  is  a  child  or 
other  relation  of  the  testator  before  his  death  does  not 
revoke  the  gift  unless  the  deceased  left  no  issue,  or 
other  provisions  of  the  will  govern.  The  gift  passes 
to  the  issue  or  descendants  of  the  devisee  or  legatee, 
and  the  will  remains  in  full  force  and  effect.33 

28  Hoit  v.  Hoit,  63  N.  H.  475,  3  Atl.  604. 

29  Baldwin  v.  Spriggs,  65  Md.  373,  5  Atl.  385. 

30  Runkle  v.  Gates,  11  Ind.  95. 

31  L.  O.  L.,  §  7323. 

32  L.  O.  L.,  §  7324. 

33  Kev.  Stats.,  c.  17,  5  50,  [1314];  L.  O.  L.,  §  7327;  Baacke  v.  Baacke, 
50  Neb.  18,  69  N.  W.  303. 

(100) 


Chap.  5]  BEVOCATIOX  OF  WILLS.  §  66 

§  66.    Revocation  by  marriage. 

Marriage  revokes  a  will  to  the  extent  that  it  excludes 
the  surviving  spouse  of  his  or  her  statutory  share, 
should  the  survivor  elect  to  take  under  the  statute,  in- 
stead of  under  the  will.34  Whether  the  marriage  of  a 
man  entirely  revokes  his  will  is  an  open  question  in 
Nebraska.  At  common  law  marriage  and  birth  of 
issue  were  necessary  to  effect  a  revocation.35  The 
weight  of  authority  appears  to  be  that  when  a  widow 
can  inherit  property  from  her  husband,  or  succeeds  to 
the  same  by  virtue  of  the  marital  relation,  marriage 
effects  the  same  changes  in  his  condition  and  circum- 
stances as  marriage  and  birth  of  issue;  consequently 
marriage  alone  revokes  his  will.36  There  is  consid- 
erable authority  on  the  other  side  of  the  proposition.37 
In  many  states  it  is  regulated  by  statute. 

Under  the  Oregon  statute,  the  will  of  a  man  is  re- 
voked by  marriage  and  birth  of  issue,38  and  that  of  a 
woman  by  her  marriage,  as  at  common  law.39 

At  common  law  the  will  of  a  feme  sole  was  revoked 
by  her  marriage,  and  a  married  woman  could  not,  by 
herself,  make  a  valid  will,40  the  rule  being  based  on  the 
right  of  the  husband  to  the  personal  property  of  the 

34  Rev.  Stats.,  c.  17,  §  8,  [1272];  Vandever  v.  Higgins,  59  Neb.  333, 
80  N.  W.  1043. 

35  4  Kent,  Com.,  13th  ed.,  527. 

3«  Scherrer  v.  Brown,  21  Colo.  481,  42  Pac.  688;  Brown  v.  Scherrer, 
5  Colo.  App.  255,  38  Pac.  427;  Morgan  v.  Ireland,  1  Idaho,  786;  Tyler 
v.  Tyler,  19  111.  151;  In  re  Toepfer,  12  N.  M.  372,  78  Pac.  53. 

37  Hulet  v.  Carey,  66  Minn.  327,  69  N.  W.  31;  Hoy  v.  Hoy,  93  Miss. 
782,  48  South.  903. 

38  L.  O.  L.,  §  7321. 
3»  L.  O.  L.,  §  7322. 

«o  Forse  &  Hembling's  Case,  4  Coke,  60b. 

(101) 


§§  67,  68  PROBATE   AND   ADMINISTRATION".  [Chap.  5 

wife,  and  her  inability  to  devise  real  estate,  excepting 
only  those  cases  in  which  the  right  to  dispose  of  her 
separate  property  was  preserved  to  her  by  a  power  of 
appointment,  or  an  antenuptial  agreement.41  In  most 
states  where  she  has  the  same  testamentary  rights  as 
a  man,  it  has  Been  held  that  the  common-law  rule  was 
abrogated,  and  her  will  is  valid.42 

§  67.    Revocation  by  birth  of  issue. 

Birth  of  issue,  though  occurring  after  the  death  of 
the  testator,  does  not  entirely  revoke  a  will,43  but  revo- 
cation may  be  partial.  A  posthumous  child  is  entitled 
to  the  same  share  in  the  estate  of  the  testator  which 
he  would  receive  had  such  testator  died  intestate, 
unless  the  will  shows  an  intention  to  disinherit  him,44 
and  a  child  omitted  in  the  distribution  made  by  the  will 
is  entitled  to  a  like  share,  unless  such  omission  was 
intentional.45 

Under  the  Oregon  statute,  such  child  takes  the  same 
share  as  if  the  decedent  were  intestate,46  unless  he  has 
received  an  equal  proportion  in  his  lifetime.47 

§  68.    Revocation  by  divorce. 

The  granting  of  a  decree  of  divorce,  and  consequent 
settlement  of  property  rights  of  the  parties,  does  not 

«  Waterman,  Wills,  129;  Brandish  v.  Gibbs,  3  Johns.  Ch.  (N.  Y.) 
523;  Cutter  v.  Butler,  25  N.  H.  343;  Miller  v.  Phillips,  9  R.  I.  143. 

42  Ward's  Will,  70  Wis.  251,  35  N.  W.  731;  In  re  Hunt,  81  Me.  275, 
17  Atl.  68;  In  re  Tuller's  Will,  79  111.  99;  Roane  v.  Hollingshead,  70 
Md.  369,  25  Atl.  307. 

43  Brush  v.  Wilkins,  4  Johns.  Ch.  (N.  Y.)  506. 

44  Rev.  Stats.,  c.  17,  §  47,  [1311]. 

45  Rev.  Stats.,  c.  17,  §  48,  [1312].     Sections  440,  441,  post. 

46  L.  O.  L.,  §  7325. 

47  L.  O.  L.,  §  7326. 

(102) 


Chap.  5]  BEVOCATION  OF  WILLS.  §  69 

revoke  the  will  of  either  former  husband  or  wife,48  but 
a  settlement  of  property  rights  in  anticipation  of 
divorce,  followed  by  a  decree,  revokes,  by  implication, 
a  will  by  which  the  woman  was  given  property  which 
she  received  on  the  settlement.49 


§  69.    Reviver  of  wills. 

A  will  which  has  been  revoked  is  a  nullity.  It  may 
be  revived  by  an  instrument  expressly  executed  for 
that  purpose  and  with  the  same  formalities  as  a  will, 
or  by  a  codicil,  except  so  far  as  its  terms  are  changed 
by  that  instrument.50 

Whether  the  destruction  of  a  later  will  has  the  effect 
of  reviving  an  earlier  will  still  in  existence  depends,  in 
Nebraska,  on  the  facts  and  circumstances  of  each  case. 
The  doctrine  of  Lord  Mansfield  51  that  it  was  revived 
by  such  act  of  destruction  has  not  been  fully  approved. 
Intent  alone  may  revive  the  former  will,  though  the 
presumption,  if  any,  is  against  revivor.  The  Nebraska 
rule  is  to  look  to  the  intention  of  the  testator  in  every 
case.  "Whether  the  former  will  is  revived,  depends 
upon  his  intention,  which  is  to  be  deduced  from  all 
the  circumstances."52 

In  Oregon,  the  destruction  or  canceling  or  revocation 
of  the  second  will  does  not  revive  the  first,  unless  it 

«  Baacke  v.  Baacke,  50  Neb.  18,  69  N.  W.  303. 

«  Donaldson  v.  Hall,  106  Minn.  502,  119  N.  W.  219. 

50  Hawke  v.  Euyart,  30  Neb.  149,  46  N.  W.  422. 

51  Harwood  v.  Goodright,  1  Cowp.  87. 

52  Williams  v.  Miles,  68  Neb.  463,  94  N.  W.  705.     The  weight  of  au- 
thority is  strongly  opposed  to  the  doctrine  of  revival  by  intention, 
•which  is  practically  the  meaning  of  the  last  cited  case,  both  in  cases 
where  the  destroyed  will  contained  a  revocation  clause  and  where  it 
revoked  the  older  instrument  by  implication  only. 

(103) 


§  69  PROBATE   AND   ADMINISTRATION.  [Chap.  5 

appears  by  the  terms  of  such  revocation  that  it  was  the 
intention  of  the  testator  to  revive  and  give  effect  to  the 
first  will,  or  unless  he  shall  duly  republish  such  first 
will.53 

If  the  later  will  is  refused  probate  for  any  reason, 
it  is  considered  as  never  having  had  an  existence,  and 
the  earlier  will,  if  not  destroyed  or  otherwise  revoked, 
is  valid  and  entitled  to  probate.54 

53  L.  O.  L.,  §  7328. 

R4  Lyon  v.  Dada,  127  Mich.  495,  86  N.  W.  946;  Laughton  v.  Atkins, 
1  Pick.  (Mass.)  542;  Kudy  v.  Ulrich,  69  Pa.  177;  Eeid  v.  Borland,  14 
Mass.  208. 

(104) 


CHAPTER  VI. 

LOST  WILLS. 

§  70.     Presumption  from  Failure  to  Find  Will. 

71.  Jurisdiction  of  County  Court  Over  Lost  Wills. 

72.  Evidence  Necessary  to  Establish  Lost  or  Destroyed  Will. 

§  70.    Presumption  from  failure  to  find  will. 

The  loss  or  fraudulent  destruction  of  a  will  did  not 
affect  its  validity  at  common  law.  It  could  be  estab- 
lished in  a  court  of  general  equity  jurisdiction.1  When 
it  is  known  to  have  been  in  the  possession  of  the  tes- 
tator and  cannot  be  found  after  his  death,  the  law 
presumes  that  he  destroyed  it  animo  revocandi,2  and 
though  having  no  force  as  a  will,  it  may  be  necessary 
to  prove  its  former  existence  on  account  of  its  effect 
upon  an  earlier  will. 

If  it  was  last  known  to  be  in  the  possession  of  an- 
other, there  is  no  presumption  that  it  was  revoked  by 
the  testator,3  and  if  its  execution  and  contents  can  be 
proved,  it  may  be  admitted  to  probate.4 

The  presumption  of  the  revocation  of  a  will  on  ac- 
count of  failure  to  find  it  is  prima  facie  only,  and  if  its 
loss  can  be  fairly  accounted  for  by  reason  of  other 
causes  than  the  act  of  the  decedent,  it  also  may  be 
probated.5 

1  Martin  v.  Laking,  1  Hagg.  Ecc.  244;  Cowper  v.  Cowper,  2  P.  Wins. 
720. 

2  Williams  v.  Miles,  68  Neb.  463,  94  N.  W.  705,  96  N.  W.  751;  73 
Neb.  193,  102  N.  W.  582,  105  N.  W.  181,  106  N.  W.  769;  87  Neb.  455, 
127  N.  W.  904;  In  re  Miller's  Will,  49  Or.  456,  90  Pac.  1002. 

3  Snyder  v.  Burke,  84  Ala.  503,  4  South.  225;  Lane  v.  Hill,  68  N.  H. 
275,  44  Atl.  393. 

4  Sugden  v.  St.  Leonards,  1  Prob.  Div.  154. 

5  Gavitt   v.   Moulton,   119   Wis.   35,   96   N.   W.   395;    Southworth   y. 
Adams,  11  Biss.  256,  Fed.  Cas.  No.  13,194. 

(105) 


§§  71,  72  PROBATE  AND  ADMINISTRATION".  [Chap.  6 

§  71.    Jurisdiction  of  county  court  over  lost  wills. 

The  county  court  of  the  county  in  which  decedent 
was  a  resident  at  the  time  of  his  death  has  jurisdiction 
to  establish  and  admit  to  probate  his  lost  or  fraudu- 
lently destroyed  will.6 

Jurisdiction  to  establish  the  will  was  formerly 
vested,  at  common  law,  in  courts  possessing  general 
equity  powers,  but  the  exclusive  jurisdiction  over  wills 
given  the  county  court  by  the  constitution  vests  it  with 
full  power  both  to  establish  and  to  admit  to  probate 
a  will  which  has  been  lost  or  destroyed  by  accident  or 
fraud.  It  may  be  done  on  the  hearing  for  its  probate, 
the  petition,  notice  and  hearing  being  the  same  as  in 
other  cases.7  If  the  will  has  been  destroyed  by  the  tes- 
tator animo  revocandi,  it  may  be  proved  and  its  con- 
tents determined  in  an  application  for  the  probate  of 
a  former  will,  or  in  an  action  for  revocation  of  probate 
of  the  same,  inasmuch  as  the  later  will  annuls  the 
former  one  to  the  extent  that  its  provisions  are  at  vari- 
ance with  those  of  the  former  instrument.  If  it  con- 
tains a  revocation  clause,  such  annulment  is  complete.8 

§  72.    Evidence   necessary  to   establish   lost   or   de- 
stroyed will. 

In  order  to  prove  a  lost  or  fraudulently  destroyed 
will,  it  is  incumbent  on  the  proponent,  or  the  party  who 
sets  it  up  as  a  defense  to  the  probate  of  a  former  will, 
or  as  a  ground  for  the  revocation  of  the  probate  thereof, 
to  show  what  became  of  the  original  instrument,  whose 

6  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  451;  L.  O.  L.,  §  1139. 
^  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  451. 

8  Williams  v.  Miles,  68  Neb.  463,  94  N.  W.  705,  96  N.  W.  15.1;  73 
Neb.  193,  102  N.  W.  482,  105  N.  W.  181,  106  N.  W.  789. 

(106) 


Chap.  6]  LOST  WILLS.  §  72 

custody  it  was  last  known  to  be  in,  account  for  its  non- 
production,  and  prove  its  execution  and  contents.9 

Evidence  of  its  execution  and  contents  must  be  clear, 
positive  and  convincing.10  Its  execution  may  be  proved 
by  the  testimony  of  the  subscribing  witnesses  and 
draftsman,  and  declarations  of  the  testator,11  and  its 
contents  by  a  copy  of  the  original  draft  properly  iden- 
tified,12 by  the  testimony  of  witnesses  who  knew,  or 
might  be  presumed  to  have  known,  the  contents  of  the 
will  from  their  own  inspection  of  it,13  and  by  declara- 
tions of  the  testator.14  Such  declarations  are  not  suffi- 
cient, standing  alone,  to  establish  the  contents,  but 
tend  to  prove  the  existence  of  the  instrument  and  cor- 
roborate more  direct  evidence  of  what  it  contained.15 

A  person  who  merely  heard  the  will  read  cannot  tes- 
tify as  to  what  it  contained.16  Heirs  or  next  of  kin 
are  competent  to  testify  in  regard  to  personal  trans- 
actions or  conversations  with  the  testator  about  the  will 
and  its  contents.17 

A  part  of  its  contents, — for  instance,  a  revocation 
clause, — may  be  proved  even  though  the  balance  of  the 
instrument  cannot  be  determined.18 

»  Strong  v.  Potts,  94  Neb.  742,  144  N.  W.  789. 

10  Williams  v.  Miles,  68  Neb.  493,  94  N.  W.  795;  73  Neb.  193,  105 
N.  W.  482;  87  Neb.  455,  127  N.  W.  904;  Clark  v.  Turner,  50  Neb.  290, 
69  N.  W.  843. 

11  Williams  v.  Miles,  68  Neb.  463,  94  N.  W.  705,  96  N.  W.  151;  In  re 
Miller's  Will,  59  Or.  456,  90  Pac.   1002;  McKenna  v.  McMichael,  189 
Pa.  440,  42  Atl.  14;  McNeeley  v.  Pearson  (Tenn.  Ch.),  42  S.  W.  165. 

12  Ewing  v.  Mclntyre,  141  Mich.  506,  104  N.  W.  787. 

13  Chisolm's  Heirs  v.  Ben,  7  B.  Mon.  (Ky.)  408. 

14  Williams  v.  Miles,  68  Neb.  473,  94  N.  W.  705. 

15  Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843. 

16  Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843. 

17  Williams  v.  Miles,  68  Neb.  463.  94  N.  W.  705. 

18  Sugden  v.  St.  Leonards,  1  Prob.  Div.  154;  Davis  v.  Sigourney,  8 
Met.  (Mass.)  487. 

(107) 


CHAPTER  VII. 

PROCEEDINGS  TO  COMPEL  PRODUCTION  OF  WILL 

IN  COURT. 

§  73.  Deposit  of  Will  in  County  Court. 

74.  Duties  of  Other  Person  to  Deliver  Will. 

75.  Proceedings  to  Bring  a  Will  into  Court. 

76.  Liability  for  Failure  to  Deliver  Will. 

§  73.    Deposit  of  will  in  county  court. 

After  a  will  has  been  duly  executed,  it  may  be  re- 
tained by  the  testator  in  his  possession,  delivered  to 
any  person,  or  deposited  in  the  county  court,  that  court 
being  especially  authorized  to  receive  and  preserve 
wills  of  testators  residing  within  the  county.  Any  per- 
son desiring  to  avail  himself  of  the  privilege  of  having 
his  will  kept  in  the  county  court  must  inclose  the  same 
in  a  sealed  wrapper,  indorse  thereon  his  name  and  place 
of  residence,  and  the  date  when  and  the  person  by 
whom  it  is  delivered  to  the  court.  The  county  judge 
must  give  him  a  certificate  of  deposit  thereof,  and 
should  keep  a  record  of  all  wills  delivered  into  court 
for  safekeeping.  He  is  not  obliged  to  keep  and  pre- 
serve wills  of  nonresidents  of  the  county.1 

The  fact  of  a  will  being  so  deposited  gives  it  no  more 
binding  force  than  if  it  were  retained  in  the  possession 
of  the  testator.  He  may  revoke  it  by  another  instru- 
ment executed  in  the  same  manner,  without  withdraw- 
ing it  from  the  court. 

During  the  lifetime  of  the  testator,  a  county  judge 
has  no  authority  or  right  to  deliver  a  will  so  deposited 

i  Bev.  Stats.,  c.  17,  §  32,  [1296]. 
(108) 


Chap.  7]        PRODUCTION  OF  WILL  IN  COUKT.  §  73 

to  any  other  person  than  the  testator,  except  upon  a 
written  order,  duly  proved  by  the  oath  of  a  subscribing 
witness.2 

Whenever  the  county  judge  learns  of  the  death  of  a 
party  whose  will  has  been  deposited  in  his  court  for 
safekeeping,  it  is  his  duty  to  publicly  open  the  envelope 
containing  the  will  and  give  notice  to  the  person 
named  therein  as  executor,  or  if  none  be  named,  to  the 
persons  interested.3 

Form  No.  15. 
INDORSEMENT  OF  WRAPPER  CONTAINING  WILL. 

The    last    will    of    A.    B.,    of   the    city    of   ,    county, 

Nebraska,  sealed  by  said  A.  B.,  and  delivered  by  him  (C.  D.  for  said 

A.  B.)  to  the  county  judge  of  said  county  for  safekeeping  this  

day  of ,  19 — . 

(Signed)     A.  B. 
Form  No.  16. 
CERTIFICATE  OF  DEPOSIT  OF  WILL. 


Neb.,  ,  19—. 


Received  of  A.  B.,  of  ,  Nebraska  (C.  D.  for  A.  B.,  of 


.Nebraska),   for   safekeeping,    sealed   wrapper   purporting    to    contain 
last  will  of  said  A.  B. 

(Signed)     J.  K., 
County  Judge. 

Form  No.  17. 
ORDER  FOR  DELIVERY  OF  WILL. 

To  the  Hon.  J.  K.,  County  Judge  of County,  Nebraska: 

You  are  hereby  requested  to  deliver  to  the  bearer,  C.  D.,  the  instru- 
ment executed  by  me  as  and  for  my  last  will  and  testament,  now 
deposited  in  your  court. 

(Signed)     A.  B. 
Witness: 

(Signed)      C.  D. 

2  Rev.  Stats.,  c.  17,  §  33,  [1297]. 

3  Rev.  Stats.,  c.  17,  §  34,  [1298]. 

(109) 


§§  74,  75  PEOBATE  AND  ADMINISTRATION.  [Chap.  7 

State  of  Nebraska, 
County, — as. 

C.  D.,  of  lawful  age,  being  first  duly  sworn,  on  oath  says  that  he  is 
the  same  person  whose  name  is  subscribed  to  the  foregoing  order  as  a 
witness  thereto,  that  he  is  acquainted  with  said  A.  B.,  and  that  said 
order  was  signed  by  said  A.  B.  in  his  presence. 

(Signed)     C.  D. 

Subscribed  in  my  presence  and  sworn  to  before  me  this day 

of ,  19—. 

(Signed)     J.  K, 
County  Judge. 

§  74.  Duties  of  other  persons  to  deliver  will  into  court. 
Every  person  other  than  the  county  judge  having 
custody  of  any  will  is  required,  within  thirty  days  after 
he  has  knowledge  of  the  death  of  the  testator,  to  deliver 
the  same  into  the  county  court  having  jurisdiction  of 
the  case,  or  to  the  person  named  in  the  will  as  execu- 
tor,4 and  any  executor,  within  thirty  days  after  his 
testator's  death,  or  within  thirty  days  after  he  has 
knowledge  that  he  is  named  executor,  if  he  obtains 
such  knowledge  after  the  death  of  the  testator,  must 
also,  unless  the  will  has  been  otherwise  delivered,  file 
the  same  in  the  county  court.5 

§  75.    Proceedings  to  bring  a  will  into  court. 

If  the  person  having  the  will  in  his  possession  refuses 
to  file  the  will,  or  produce  it  in  court,  the  executor,  heir 
or  other  person  believing  himself  to  be  beneficially  in- 
terested in  the  estate  may  file  a  petition  for  subpoena 
to  produce  the  will. 

On  the  filing  of  the  petition  the  court  issues  a  sum- 
mons which  is  in  the  nature  of  a  subpoena  duces  tecum, 

4  Rev.  Stats.,  c.  17,  §  35,  [1299]. 

»  Rev.  Stats.,  c.  17,  §  36,  [1300];  L.  O.  L.,  §  1138. 

(HO) 


Chap.  7]        PRODUCTION  OF  WILL  ix  COURT.  §  75 

ordering  the  party  alleged  to  be  unlawfully  detaining 
the  will  in  his  possession  to  produce  it  in  court. 

The  only  defense  a  party  has  to  a  proceeding  of  this 
kind  is  that  the  will  is  not  in  his  possession  or  under 
his  control.  He  has  no  excuse  for  failing  to  deliver  it, 
except  that  circumstances  make  it  impossible  for  him 
to  do  so.  He  cannot  set  up  as  a  defense  that  the  will 
has  been  revoked  by  implication,  or  is  not  properly 
executed,  or  is  void  for  any  reason.  These  are  matters 
to  come  before  the  court  on  objections  to  probate. 

If  the  party  charged  with  having  the  will  in  his 
possession  fails  to  appear,  the  county  judge  may  issue 
an  attachment  or  warrant  against  him  for  contempt. 
If,  then,  it  appears  on  the  return  of  the  attachment  or 
warrant  with  the  party  in  custody  that  he  has  the  will 
in  his  possession  or  control,  and  he  refuses  to  turn  it 
over  to  the  court,  an  order  of  commitment  for  contempt 
may  issue  forthwith.6 

Form  No.  18. 
PETITION  FOR  THE  DELIVERY  OP  A  WILL  INTO  COURT. 

To  the  County  Court  of  ,  County,  Nebraska: 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that  on 

or  about  the  day  of ,  19 — ,  one  A.  B.,  a  resident  of 

,  in  said  county,  died,  having  previously  executed,  in  manner  and 

form  prescribed  by  law,  his  last  will  and  testament;  that  on  or  about 

the day  of ,  19 — ,  he  delivered  said  will  to  E.  F.,  of  said 

city  of  .  for  safekeeping;  that  on  the  day  of  , 

19 — ,  said  E.  F.  received  notice  of  the  death  of  said  A.  B.,  and  it 
thereupon  became  his  duty  to  deliver  said  will  into  said  court;  that 
more  than  thirty  days  have  elapsed  since  said  E.  F.  was  informed  of 
the  death  of  said  A.  B.,  and  he  has  neglected  and  refused,  and  still 
neglects  and  refuses,  to  deliver  said  will  into  court. 

Your  petitioner  is  a  son  of  said  A.  B.,  and  has  good  reason  to  believe 
that  he  is  named  as  executor  in  said  will. 

•  R«v.  Stats.,  c.  17,  J  38,  [1302];  L.  O.  L.,  §  1140.' 

(HI) 


PROBATE  AND  ADMINISTRATION.  [Chap.  7 

Your  petitioner  therefore  prays  that  a  subpoena  issue  out  of  and 
under  the  seal  of  this  court  commanding  said  E.  F.  to  bring  said  will 
into  court. 

(Signed)     C.  D. 
[Add  verification,  Form  No.  5.] 

Form  No.  19. 

SUMMONS  TO  PRODUCE  WILL  IN  COURT. 
The  State  of  Nebraska, County. 

To  the  Sheriff  or  Any  Constable  of  Said  County: 

You  are  hereby  commanded  to  summon  E.  F.  to  appear  before  the 
county  court  of  said  county  on  the  day  of ,  19 —  (forth- 
with), and  bring  with  him  and  produce  at  the  time  and  place  an  instru- 
ment deposited  with  him  by  A.  B.,  late  of  said  county,  deceased,  and 
purporting  to  be  the  last  will  and  testament  of  said  A.  B. 

Dated  this day  of ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

§  76.    Liability  for  failure  to  deliver  will. 

Any  person,  having  custody  of  the  will  of  another, 
who,  after  the  death  of  the  testator,  without  reasonable 
cause,  neglects  to  deliver  the  same  to  the  county  court 
having  jurisdiction,  after  he  has  been  duly  notified  by 
the  court  for  that  purpose,  may  be  committed  to  the  jail 
of  the  county  by  warrant  issued  by  such  court,  and 
there  kept  in  close  confinement  until  he  shall  deliver  the 
will  as  directed,  and  shall  also  be  liable  in  damages.7 

In  addition  to  being  imprisoned  in  the  county  jail  for 
contempt,  a  person  who  unjustly  refuses  to  deliver  up 
a  will  is  guilty  of  a  misdemeanor,  and  liable  in  an  action 
for  damages  to  each  and  every  person  who  may  have 
sustained  a  loss  thereby.8 

7  Rev.  Stats.,  c.  17.  §§  37,  38,  [1301],  [1302]. 

8  Rev.  Stats.,  c.  17,  §  38,  [1301];  L.  O.  L.,  §  1139. 

(112) 


Chap.  7]        PEODUCTION  OF  WILL  IN  COURT.  §  76 

Form  No.  20. 
ORDER  OF  COMMITMENT  FOR  CONTEMPT. 

In   the   County   Court   of  County,  Nebraska. 

In  the  Matter  of  Proceedings  against  A.  B.,  for  Contempt  of  Court. 

In  this  cause,  it  appearing  to  the  court  that,  on  the  day  of 

-,  19 — ,  C.  D.  filed  his  petition  herein,  the  object  and  prayer  of 


which  were  to  require  E.  F.  to  produce  and  deliver  into  court  the 
instrument  purporting  to  be  the  last  will  and  testament  of  said  A.  B.; 

that  on  the  day  of  ,  19 — ,  a  summons  duces  tecum  was 

issued  commanding  him,  said  E.  F.,  to  be  and  appear  before  the  county 

court  of  said  county  on  the  day  of  ,  19 — ,  and  produce 

and  deliver  into  court  said  will;  that  personal  service  of  said  sum- 
mons has  been  had  on  said  E.  F.;  that  on  said  day  of  , 

19 — ,  said  E.  F.  appeared  in  said  court,  and  refused  to  deliver  said 
will,  and  gave  no  reasonable  excuse,  or  reason  for  his  failure  to  so 
deliver  it. 

Upon  consideration  whereof,  the  court  finds  that  said  E.  F.  has  pos- 
session of  said  will,  and  has  neglected  and  refused  to  deliver  the  will 
of  said  A.  B.  into  court  for  more  than  thirty  days  after  he  had  been 
informed  of  the  death  of  said  A.  B.,  and  still  neglects  and  refuses  to 
deliver  said  will  into  court. 

It  is  therefore  ordered  and  adjudged  that  said  E.  F.  be  committed 
to  the  county  jail  of  said  county,  and  there  be  kept  in  close  confine- 
ment until  he  complies  with  the  order  of  this  court,  and  delivers  said 
will  into  court,  and  that  he  pay  the  costs  of  this  proceeding,  taxed  at 

Dated  this  day  of ,  19 — . 

(Signed)     J.   K., 
County  Judge. 

Form  No.  21. 

WARRANT  FOR  CONTEMPT. 
The  State  of  Nebraska, County. 

To  the  Sheriff  of  Said  County: 

You  are  hereby  commanded  to  forthwith  arrest  E.  F.,  and  bring 
him  before  the  county  court  of  said  county  to  show  cause  why  he 
should  not  be  punished  for  contempt  of  this  court  for  his  refusal  to 
deliver  to  this  court  the  will  of  A.  B.,  late  of  said  county,  deceased, 
after  being  duly  notified  to  produce  the  same  as  required  by  law. 
8— Pro.  Ad. 


§  76  PROBATE  AND  ADMINISTRATION.  [Chap.  7 

Given  under  my  hand,  and  the  seal  of  the  court  affixed  thereto,  this 
day  of ,  19—. 


(Seal)  (Signed)     J.  K., 

County  Judge. 

Form  No.  22. 

COMMITMENT  FOE  CONTEMPT. 
The  State  of  Nebraska, County. 

To  the  Keeper  of  the  Jail  of  Said  County: 

Whereas  the  following  is  a  true  copy  of  an  order  duly  made  and 

entered  by  the  county  court  of  said  county  on  the  day  of 

,  19 — :  [Here  copy  order  in  full.] 

You  are  therefore  commanded  to  receive  said  E.  F.  into  your  custody 
in  said  jail,  and  him  safely  keep  in  close  confinement  until  he  comply 
with  the  order  of  this  court,  and  produce  and  deliver  into  court  an 
instrument  purporting  to  be  the  last  will  and  testament  of  A.  B.,  late 
of  said  county,  deceased,  and  pay  the  costs  herein,  taxed  at  $ —  — , 
or  be  duly  discharged  according  to  law. 

Given  under  my  hand,  and  the  seal  of  the  court  affixed  thereto,  this 
day  of  — ,  19—. 


(Seal)  (Signed)     J.  K., 

County  Judge. 

(114)  ' 


CHAPTER  VIII. 

PROBATE  OF  WILLS. 

5     77.  Definition  of  the  Term  "Probate"  as  Applied  to  Wills. 

78.  Statute  of  Limitations. 

79.  Petition  for  Probate  of  a  Will. 

80.  Notice  of  Hearing. 

81.  Facts  Necessary  to  be  Proved  on  Probate  of  Will. 

82.  One  Witness  Only  Required  When  Will  not  Contested. 

83.  Testamentary  Character  of  Instrument  Proposed  as  a  Will. 

84.  Contestants  of  Wills. 

85.  Evidence  of  Mental  Capacity. 

86.  Expert    Evidence. 

87.  Undue  Influence — Definition. 

88.  Conditions  Constituting  Undue  Influence. 

89.  Undue  Influence  and   Mental  Capacity. 

90.  Unjust  Provisions  Evidence  of  Undue  Influence. 

91.  Undue  Influence  of  Person  Holding  Special  Relation  of  Trust. 

92.  Undue  Influence  of  Draftsman  of  Will. 

93.  Execution  of  Will  Obtained  by  Fraud. 

94.  Evidence   of  Undue  Influence   and   Fraud. 

95.  Will  of  Person  Under  Guardianship. 

96.  Declarations  of  Testator. 

97.  Fraud  and  Undue  Influence — By  Whom  Shown. 

98.  Effect  of  Will  Obtained  by  Fraud. 

99.  Invalid    Bequest    or    Devise. 

100.  Omitting  Reference  to  Children. 

101.  Probate   of  Foreign  Wills. 

102.  Probate  of  Nuncupative  Wills. 

103.  Probate  of  Wills  Executed  Outside  the  State  by  a  Resident 

Thereof. 

104.  Costs  in  Will  Contests. 

105.  Reducing  Testimony  on  Probate  of  Wills  to  Writing. 

106.  Order   Admitting  Will  to  Probate. 

107.  Certificate  of  Probate  of  Will. 

§  77.    Probate  of  wills — Definition. 

Probate  of  a  will  is  the  proof  before  an  officer  author- 
ized by  law  that  an  instrument  offered  to  be  proved  or 

(115) 


§  77  PROBATE  AND  ADMINISTRATION.  [Chap.  8 

recorded  is  the  last  will  and  testament  of  the  deceased 
person  whose  testamentary  act  it  is  alleged  to  be.1  In 
the  case  of  a  domestic  will,  or  one  offered  for  original 
probate  in  this  state,  it  is  proving  the  same  to  have  been 
signed  by  the  testator  and  attested  by  him  in  the  pres- 
ence of  two  witnesses,  who,  at  his  request,  have  signed 
their  names  thereto  as  witnesses,  and  that  at  the  time 
of  the  execution  thereof  he  was  of  sound  mind.2  In  the 
case  of  a  foreign  will  it  is  proving  it  to  have  been  duly 
probated  according  to  the  laws  of  the  state  or  country 
where  it  was  originally  propounded.3 

Until  probated  in  this  state,  either  a  foreign  or 
domestic  will  is  a  nullity.4 

At  common  law  there  were  two  methods  of  probating 
wills:  common  form,  which  consisted  in  presenting  the 
instrument  to  the  officer,  and  proving  it  by  ex  part? 
evidence,  usually  an  affidavit,  without  notice  to  any 
party,6  and  in  solemn  form,  in  which  notice  was  given 
and  a  full  hearing  had ;  and  any  will  probated  in  com- 
mon form  could  be,  on  application,  thereafter  probated 
in  solemn  form.6 

In  Nebraska,  probate  of  wills  is  regulated  by  statute 
and  is  analogous  to  the  solemn  form;  notice  must  be 
given  and,  a  formal  hearing  had. 

1  Bouvier's  Law  Diet. 

2  Section  41  et  seq.,  supra. 

3  Eev.  Stats.,  c.  17,  §43,  [1307]. 

4  Pettit  v.  Black,  13  Neb.  142,  12  N.  W.  S41 ;  Koberts  v.  Flannagan,. 
21  Neb.  509,  32  N.  W.  563;  Jones  v.  Dove,  6  Or.  188;  Stevens  v.  Myers, 
62  Or.  392,  126  Pac.  29,  121  Pac.  434. 

5  Hubbard   v.  Hubbard,   7  Or.  42;   Luper  v.   Werts,  -19  Or.   122,  23- 
Pac.  850;  Waters  v.  Stickney,  12  Allen   (Mass.),  1. 

«  Noyes  v.  Parker,  4  N.  H.  403;  Brown  v.  Anderson,  13  Ga.  171. 

(116) 


Chap.  8]  PROBATE  OF  WILLS.  §  78 

In  Oregon,  wills  are  probated  in  common  form,  but 
if  their  validity  is  attacked,  they  must  be  re-probated 
by  original  proof  the  same  as  if  no  probate  had  been 
had,  after  notice.7  Probate  in  common  form  does  not 
dispense  with  proof  of  the  will.  The  burden  of  proof 
is  on  the  proponent,  and  he  must  establish  the  same 
facts,  though  ex  parte,  as  in  the  case  of  probate  in 
solemn  form.8 

The  county  court  of  the  county  in  which  decedent 
resided  at  the  time  of  his  death,  or  that  in  which  he 
left  assets  either  real  or  personal,  if  a  nonresident  of 
the  state,  has  exclusive  original  jurisdiction.9 

Under  the  Oregon  practice,  the  county  court  of  the 
county  in  which  the  deceased  actually  dwelt  at  the  time 
of  his  death,  or  in  which  he  died  seised  of  real  estate, 
or  if  he  did  not  dwell  in  the  state,  a  county  within 
which  there  are  assets  at  the  time  the  application  is 
made,  has  such  jurisdiction.10 

§  78.    Statute  of  limitations  not  a  bar  to  probate. 

As  the  probate  of  a  will  is  not  an  action,  or  an  adver- 
sary proceeding,  but  strictly  a  proceeding  in  rem,  no 
statute  of  limitation  bars  an  original  application  for  its 
probate.  It  matters  not  how  long  a  time  has  elapsed 
since  the  death  of  the  testator;  it  is  the  duty  of  the 
court  to  admit  it  to  probate  on  proof  of  its  validity,11 

7  L.  O.  L.,  §  1143;  Hubbard  v.  Hubbard,  7  Or.  42. 

8  Clark  v.  Ellis,  9  Or.  128;  In  re  Mendenhall's  Will,  43  Or.  542,  72 
Pac.  318,  73  Pac.  1033;  In  re  Pickett's  Will,  49  Or.  127,  89  Pac.  377. 

»  Brown  v.  Webster,  87  Xeb.  788. 

10  L.  O.  L.,  §  1141;  Holmes  v.  Oregon  &  Cal.  Ry.  Co.,  9  Fed.  229. 

11  Shumway  v.  Holbrook,  1  Pick.  (Mass.)   115;  Waters  v.  Stickney, 
12  Allen   (Mass.),  1;  Haddock  v.  Boston  &  M.  B.  Co.,  146  Mass.  155, 
15    N.    E.    456. 

(117) 


§  79  PROBATE   AND   ADMINISTRATION.  [Chap.  8 

and  it  is  no  defense  that  the  estate  has  been  settled  by 
an  administrator.12 

An  unexplained  delay  in  presenting  it  for  probate 
is  looked  upon  with  suspicion,  especially  where  it  is 
alleged  that  the  will  is  lost,  and  some  good  reason 
therefor  should  be  shown.13 

§  79.    Petition  for  probate  of  will. 

It  is  the  duty  of  any  person  on  being  notified  that  he 
is  named  as  executor  in  a  will,  or  when  such  fact 
comes  to  his  knowledge,  to  take  steps  toward  probating 
it.14  The  law  does  not  demand  that  he  do  this  at  his 
own  expense,  but  ordinarily  gives  him  the  right  to 
reimbursement  from  the  estate  for  his  costs,  expenses 
and  attorney  fees.15  He  should  either  proceed  to  have 
the  will  probated  or  renounce  the  trust.18 

The  statutes  do  not,  in  express  terms,  require  the 
filing  of  a  petition  for  its  probate,  but  from  an  early 
date  to  the  present  the  courts  have  treated  it  as  juris- 
dictional.17 

If  the  executor  neglect  or  refuse  to  take  any  action, 
any  person  who  takes  a  beneficial  interest  under  the 

12  Rev.  Stats.,  c.  17,  §  87,  [1351]  ;  L.  O.  L.,  §  1158. 

13  Strong  v.  Potts,  94  Neb.  742,  144  N.  W.  789. 

14  Zimmer  v.  Saier,  158  Mich.  170,  119  N.  W.  435;  Converse  v.  Starr, 
23  Ohio  St.  491;  Stark  v.  Parker,  58  N.  H.  581. 

15  Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843 ;  In  re  Hentges'  Estate, 
86  Neb.  75,  124  N.  W.  929. 

16  Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843. 

17  Loosemore  v.  Smith,  12  Neb.  345,  11  N.  W.  493;  Kirk  v.  Bowling, 
20   Neb.    260,  29    N.    W.    982;    Seebrook    v.    Fedawa,    30    Neb.  424,  46 
N.  W.  650;  Kolterman  v.  Chilvers,  82  Neb.  216,  117  N.  W.  405;  Strong 
v.  Potts,  94  Neb.  742,  144  N.  W.  789. 

(118) 


Chap.  8]  PROBATE  OF  WILLS.  §  79 

will  may  file  the  petition.18  It  should  allege  the  domi- 
cile of  the  testator,  the  date  of  his  death,  that  he  left 
a  will,  and  give  the  names  and  residences,  so  far  as 
known,  of  his  next  of  kin  and  beneficiaries.19 

The  statute  does  not  require  the  party  named  as 
executor  to  take  any  further  steps  than  the  preliminary 
proceeding  for  the  probate  of  the  will.  In  the  case  of 
a  contest,  the  beneficiaries,  as  the  parties  who  will  be 
benefited,  ought  to  assume  the  burden  of  the  case.  The 
nominee  cannot  be  assured  that  the  court  will  allow 
him  more  than  court  costs.20  He  has  no  rights  in  the 
matter  until  letters  issue.21  If  he  turns  the  case  over  to 
the  beneficiaries,  leaving  them  to  bear  the  burden  of  the 
contest,  the  parties  who  will  receive  the  benefits  are 
the  ones  who  pay  the  expenses.22 

Under  the  Oregon  practice,  the  filing  of  a  petition 
is  necessary  to  give  the  court  jurisdiction.  It  may  be 
filed  by  an  executor,  devisee,  or  legatee  named  in  the 
will,  or  by  any  other  person  interested  in  the  estate, 
at  any  time  after  the  death  of  the  testator,  whether  the 
will  be  in  his  possession  or  not  or  is  lost  or  destroyed, 
or  beyond  jurisdiction,  or  is  a  nuncupative  will.23  It 
should  state  the  date  of  the  death  of  decedent,  the 
county  in  which  he  was  an  inhabitant  at  the  time  of  his 
death,  the  existence  of  an  estate  together  with  the  loca- 
tion and  estimated  value  of  the  same,  the  names,  ages 
and  residences,  so  far  as  known,  of  his  heirs,  and  also 

18  Stebbins  v.  Lathrop,  4  Pick.  (Mass.)  33;  Keniston  v.  Adams,  80 
Me.  290,  14  Atl.  203. 

19  Hathaway's  Appeal,  46  Mich.  327,  9  N.  W.  435. 

20  Section  104,  post. 

21  Schoenberger's  Exr.  v.  Institution,  etc.,  28  Pa.  465. 

22  In  re  Mullenshclader's  Estate,  137  Wis.  32,  118  N.  W.  209;  Mc- 
Cormirk  v.  Elsea's  Estate,  107  Va.  472,  59  S.  E.  411. 

23  L.  O.  L.,  §  1139. 

(119) 


§  80  PEOBATE   AND   ADMINISTRATION.  [Chap.  8 

set  up  the  execution  of  the  will,24  and  should  be  veri- 
fied.25 The  petition  is  therefore  substantially  the  same 
as  in  Nebraska. 

Form  No.  23. 

PETITION   FOR   PROBATE   OF   WILL. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
A.  B.,  late  of  said  county,  departed  this  life  at  his  residence  in  said 

county   on   the  day   of  ,   19 — ,  leaving  a  last   will   and 

testament,  in  which  your  petitioner  is  named  as  executor,  which  will 
he  now  offers  for  probate,  and  that  said  will  relates  to  both  real  and 
personal  estate. 

Your    petitioner    further    shows    that    said    A.    B    was    at    the    time 

of  his   death  a  resident  of  ,  in  said  county,   and   that  he  left 

surviving  him  a  widow,  C.  B.,  who  now  resides  at  -  — ,  in  said 
county,  and  children  as  follows:  [Give  name,  age,  and  residence 
of  each  child  as  far  as  known;  if  not  known,  so  state.  If  he  left 
no  children,  give  names,  ages,  if  minors,  and  residences,  as  far  as 
known,  of  his  heirs  at  law.] 

Your  petitioner  therefore  prays  that  the  court  will  appoint  a  time 
and  place  for  hearing  said  will,  and  that  notice  in  due  form  may  be 
issued  and  given  to  all  persons  interested  in  said  estate,  requiring 
them  to  appear  and  attend  fhe  probate  of  said  will,  and  for  such  other 
proceedings  as  may  be  necessary  and  proper  in  the  premises  to  admit 
said  will  to  probate,  and  for  letters  testamentary. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

§  80.    Notice  of  hearing. 

Whenever  any  will  shall  have  been  delivered  into, 
or  deposited  in,  any  probate  court  having  jurisdiction 
of  the  same,  it  is  the  duty  of  the  court  to  fix  a  time  and 

24  Moore  v.  Willamette  Trans.  Co.,  7  Or.  359;  Holmes  v.  Oregon  & 
C.  Ry.  Co.,  5 -Fed.  232;   Sappingfield  v.  Sappingfield,  67   Or.  156,  135 
Pac.  333. 

25  L.  O.  L.,  §  82. 

(120) 


Chap.  8]  PROBATE  OF  WILLS.  §  80 

place  for  hearing,  when  all  persons  interested  may 
appear  and  contest  its  probate.26 

Hearing  is  usually  held  about  three  weeks  after  the 
petition  is  filed,  but  may  be  set  for  an  earlier  date. 
The  method  of  service  rests  in  the  discretion  of  the 
court  irrespective  of  the  residence  of  the  parties.  It 
may  be  by  personal  service  upon  all  parties  interested, 
or  by  publication  in  such  newspaper,  printed  in  this 
state  as  the  court  may  direct,  for  three  successive  weeks 
previous  to  the  time  appointed.  The  notice  must  ap- 
pear in  three  successive  publications  of  the  paper  des- 
ignated. It  is  not  necessary  for  the  last  publication  to 
be  twenty-one  days  from  the  first.  The  practice  gen- 
erally prevailing  is  to  give  notice  by  publication,  and 
thus  avoid  the  necessity  of  the  court  passing  upon  the 
question,  without  having  the  evidence  before  it,  of  who 
are  interested  in  the  estate.27  The  proceeding  is  in 
rem,  and  personal  notice  is  not  necessary  to  give  juris- 
diction.28 

Form  No.  24. 
ORDER  FOR  HEARING. 

[Title  of  Matter  and  Court.] 

Now,   on   this  day  of  ,   19 — ,   C.   D.    having  filed  his 

petition,  under  oath,  for  the  probate  of  an  instrument  purporting  to  be 
the  last  will  and  testament  of  A.  B.,  deceased,  and  for  the  issue  of 
letters  testamentary  to  him,  said  petitioner,  it  is  ordered  that  said 

petition  be  set  for  hearing  on  the  day  of  ,  19 — ,  at  the 

hour  of  —  A.  M.  of  said  day,  that  notice  thereof  be  given  all  persons 
interested  by  publication  thereof  for  three  successive  weeks  in  the 
,  a  legal  newspaper  of  said  county,  by  personal  service  on  E.  F., 

26  Rev.  Stats.,  c.  17,  §39,   [1303]. 

27  In  re  Seiker's  Estate,  89  Neb.  216,  131  N.  W.  204;  Alexander  v. 
Alexander,  26  Neb.  75,  41  N.  W.  1065. 

28  In  re  Miller's  Estate,  69  Neb.  441,  95  N.  W.  1010. 

(121) 


§  81  PROBATE    AND    ADMINISTRATION.  [Chap.  8 

and  by  sending  a  true  copy  thereof  to  G.  H.,  by  registered  mail  ad- 
dressed to  ,  his  last  known  postoffice  address,  within  ten  days 

of  the  date  set  for  said  hearing. 

(Signed)     J.  K., 
County   Judge. 

Form  No.  25. 
NOTICE  OF  HEARING. 

In   the  County  Court   of  County,   Nebraska. 

In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

Notice  is  hereby  given  that  on  the day  of  ,  19 — ,  at 

the  county  court  room  in  the  city  of  ,  said  county,  at  the  hour 

of  —  A.  M.  of  said  day,  the  following  matter  will  be  heard  and  con- 
sidered, to  wit,  the  petition  of  C.  D.  for  the  probate  of  a  certain 
written  instrument  now  on  file  in  said  court,  and  purporting  to  be  the 
last  will  and  testament  of  A.  B.,  deceased,  for  the  grant  of  letters 
testamentary  thereon,  to  said  petitioner. 

Dated ,  19—. 

(Seal)  J.  K., 

County  Judge. 

§  81.  Facts  necessary  to  be  proved  on  probate  of  will. 
To  entitle  a  will  executed  within  this  state  to  pro- 
bate, it  must  be  shown  that  all  the  requirements  of  the 
statutes  in  regard  thereto  have  been  fully  complied 
with.  The  rights  of  the  heirs  at  law  to  take  the  prop- 
erty according  to  the  laws  of  distribution  and  descent 
can  only  be  affected  by  a  strict  compliance  with  the 
provisions  of  the  laws  which  bar  such  right.  The  pro- 
ponent must  establish  the  following  facts:  First,  that 
the  testator  was  of  full  age,  and  of  sound  and  disposing 
mind;  second,  that  the  will  is  in  writing,  signed  by 
the  testator  or  by  some  one  for  him  in  his  presence; 
third,  that  it  was  attested  and  subscribed  by  two  com- 
petent witnesses  in  the  actual  presence  of  the  testator, 
(122) 


Chap.  8]  PROBATE    OF    WILLS.  §  81 

and  signed  by  him  in  their  presence,  or,  if  not  signed 
by  him  in  their  presence,  that  he  informed  them  that 
he  had  signed  it.29 

The  general  presumption  of  law  that  every  person  is 
considered  of  sound  mind  until  the  contrary  is  shown 
does  not  apply  in  Nebraska  in  a  proceeding  for  the 
probate  of  a  will.  It  must  affirmatively  appear  that 
the  deceased  was  of  "sound  mind"  when  he  executed 
the  instrument,  and  such  testimony  is  equally  as  essen- 
tial when  all  parties  assent  to  its  probate  as  when  it  is 
contested.30 

In  Oregon,  the  usual  presumption  is  the  rule,31  but 
if  there  is  evidence  introduced  attacking  the  mental 
capacity  of  the  testator,  the  burden  of  proof  is  on  the 
proponent.32 

If  he  has  been  adjudged  insane,  the  presumption  is 
that  such  condition  continues.33 

The  signature  of  the  testator  must  be  proved,34  and 
unless  the  testimony  shows  that  he  either  signed  the 
will  in  the  actual  presence  of  the  witnesses  or  acknowl- 
edged to  them  that  he  had  signed  it,35  and  that  they 
knew  the  paper  was  intended  as  a  will  and  learned  such 

29  Seebrock  v.    Fedawa,  30    Xeb.  424,  46  N.  W.  650;   Crowninshield 
v.  Crowninshield,  2  Gray   (Mass.),  527;  Aikin  v.  Weckerly,  19  Mich. 
482;    Kempsey    v.   McGinniss,   21    Mich.    123;    Williams   v.   Bobinson, 
42  Vt.  658. 

30  Stebrock  v.  Fedawa,  30  Xeb.  424,  46  X.  W.  650. 

31  Greenwood  v.  Cline,  7  Or.  17. 

32  Chrisman  v.  Chrisman,  16  Or.  127,  18  Pac.  6. 

33  Buford  v.  Gruver,  223   Mo.  231,   122   S.  W.   717;   Gates  v.   Cole, 
137    Iowa,   613,   115   N.   W.   236;   Kirsher   v.   Kirsher,   124  Iowa,  337, 
94  X.  W.  846. 

34  Wendel  v.  Fuerst   (Or.),  136  Pac.  2. 

35  Mendenhall's  Will,  43  Or.  542,  73  Pac.  1033. 

(123) 


§  82  PEOBATE    AND   ADMINISTRATION.  [Chap.  8 

fact  from  the  testator,  either  directly  or  by  implication 
or  assent,  it  should  be  refused  probate.36 

The  same  rules  govern  the  aclmissibility  of  evidence 
as  though  the  case  were  being  tried  on  appeal  in  the 
district  court.  The  witnesses  must  either  be  examined 
orally  or  their  depositions  taken  on  due  notice.  Affi- 
davits of  witnesses  are  inadmissible,  as  they  are  not 
testimony.36* 

§  82.    One  witness  only  required  when  will  not  con- 
tested. 

If  no  person  shall  appear  to  contest  the  will  at  the 
time  and  place  appointed  for  that  purpose,  the  court 
may,  in  its  discretion,  grant  probate  thereof  on  the  tes- 
timony of  one  of  the  subscribing  witnesses  only,  if  such 
witness  shall  testify  that  such  will  was  executed  in  all 
particulars  as  required  by  the  statute,  and  that  the 
testator  was  of  sound  mind  at  the  time  of  the  execution 
thereof.37  If  none  of  the  subscribing  witnesses  reside 
in  this  state  at  the  time  of  the  proving  of  the  will,  the 
court  may,  in  its  discretion,  admit  the  testimony  of 
other  witnesses  to  prove  the  sanity  of  the  testator  and 
the  execution  of  the  will,  and,  as  evidence  of  the  exe- 

36  McCoy  v.  Conrad,  64  Neb.  150,  89  N.  W.  665;  In  re  Davidson's 
Estate,  70  Neb.  584,  97  N.  W.  797;  In   re  Powers'  Estate,   79  Neb. 
680,  113  N.  W.  198.     Cases  cited  in  §44,  supra. 

36»  Columbia  Nat.  Bank  v.  German  Nat.  Bank,  56  Neb.  803,  77 
N.  W.  342.  Affidavits,  even  though  prepared  by  filling  in  printed 
blanks  with  names  and  dates,  and  necessarily  based  principally  on 
hearsay,  were  sufficient  to  probate  a  will  in  "common  form,"  for  the 
reason  that  such  probate  was  not  binding  on  the  interested  parties, 
and  could  be  set  aside  at  any  time  and  the  proponent  required  to 
prove  the  will  by  competent  evidence. 

37  Rev.  Stats.,  c.  17,  §  40,  [1304]. 

(124) 


Chap.  8]  PROBATE  OF  WILES.  §  82 

cution  of  the  will,  may  admit  proof  of  the  handwriting 
of  the  testator  and  of  the  subscribing  witnesses.38  If 
the  witnesses  were  competent  at  the  time  of  the  execu- 
tion of  the  will,  their  subsequent  incompetency,  from 
whatever  cause,  will  not  prevent  the  probate  and 
allowance  of  the  will  if  it  be  otherwise  satisfactorily 
proved.39  In  cases  of  this  kind,  the  appearance  of  the 
will  itself  may  be  strong  evidence  of  its  validity.  If 
it  appears  to  have  been  properly  signed,  the  attestation 
clause  purporting  to  show  that  all  legal  requirements 
have  been  complied  with,  and  nothing  irregular  or 
suspicious  on  the  face  of  it,  the  law  raises  a  presump- 
tion that  it  was  properly  executed.40  The  same  pre- 
sumption has  been  applied  where,  the  attestation  clause 
being  regular,  the  subscribing  witnesses,  while  admit- 
ting their  signatures,  through  lapse  of  time  or  de- 
fective memory  are  unable  to  testify  to  any  other 
material  fact  in  regard  to  the  execution  of  the  instru- 
ment, the  law  supplying  the  defect  of  proof  on  this 
question  only,  unless  there  be  affirmative  evidence  that 
'  the  law  has  not  been  complied  with.41 

Probate  of  a  will  in  common  form,  as  provided  in 
Oregon,  is  a  strictly  ex  parte  proceeding.  No  notice 
of  any  kind  is  required.  The  party  who  is  entitled 
to  petition  for  its  probate,  if  he  has  the  will  in  his  pos- 

38  Rev.  Stats.,  c.  17,  §  41,  [1305], 

39  Rev.  Stats.,  c.   17,  §  26,   [1290]. 

40  Isaac    v.    Haklerman,  76    Neb.    823,    107    N.  W.  1016;    Barnes  r. 
Barnes,  66  Me.  286;   Abbott  v.   Abbott,  41  Mich.  540,  2  N.  W.  810; 
In  re  Sullivan's  Will,  114  Mich.  189,  72  N.  W.  136. 

41  In  re  Peterson's  Estate,  76  Neb.  411,  109  N.  W.  506;   Skinner's 
Will,  40  Or.  579,  62  Pac.  523,  67  Pac.  951 ;  McCurdy  v.  Neall,  42  N.  J. 
Eq.  333,  7  Atl.  566;  Allaire  v.  Allaire,  37  N.  J.  L.  312;  Ex  parte  Brock, 
37  P.  C.  348.  16  S.  E.  38;  Welch  v.  Welch,  9  Rich.  (S.  C.)   133;  Barnes 
v.  Barnes,  66  Me.  286. 

(125) 


§  83  PBOBATE    AND   ADMINISTRATION.  [Chap.  8 

session,  may  file  it  with  such  petition,  and  if  the  wit- 
nesses are  present,  the  court  may  proceed  to  take 
their  testimony  and  probate  the  will.42  The  usual 
practice  is  to  take  the  testimony  of  the  two  witnesses 
in  the  form  of  affidavits,  sometimes  called  the  "formal 
proof."  43  Oral  testimony  may  be  taken  to  supplement 
such  proof.  If  the  evidence  clearly  establishes  the 
allegations  of  the  petition,  the  will  should  be  probated. 
Probate  of  a  will  in  common  form,  though  fre- 
quently, on  account  of  the  use  of  printed  forms  of 
proof,  resulting  in  the  probate  of  an  instrument  which 
was  never  legally  executed,  is  of  the  same  effect  as 
probate  after  a  contest,  until  a  petition  is  filed  within 
the  statutory  time  to  contest  the  probate  or  the  valid- 
ity of  the  will,  or  until  set  aside  after  that  time  by 
an  action  in  equity. 

§  83.  Testamentary  character  of  instrument  proposed 
as  a  will. 

In  a  proceeding  for  the  probate  of  a  will  the  court 
has  no  authority  to  construe  it  only  to  the  extent  of 
determining  whether  the  paper  is  a  will  or  deed.44 
The  common-law  rule  is  that  no  particular  set  terms 
are  necessary  for  a  will.  If  it  is  executed  in  compli- 
ance with  the  statute,  and  appears  from  its  contents 
to  have  been  intended  as  an  instrument  making  a  dis- 
position of  his  property,  to  take  effect  at  his  death,  it 
is  a  will.45 

The  test  for  determining  its  character  is,  does  it 
convey  a  present  right  or  interest,  absolute  or  contin- 

42  Malone  v.  Cornelius,  34  Or.  196,  55  Pac.  536. 

43  See    Mendenhall's    Will,  40    Or.    547,  73    Pac.    1033;   Hubbard  T. 
Hubbard,  7  Or.  42. 

44  Dudley  v.  Gates,  124  Mich.  440,  83  N.  W.  97,  86  N.  W.  959;  Cox 
r.  Cox,  101  Mo.  168,  13  S.  W.  1055. 

45  Boss  v.  Ewer,  3  Atk.  960. 

(126) 


Chap.  8]  PBOBATE  OF  WILLS.  §  84 

gent?  If  by  its  terms  any  right  or  interest  passes  at 
once,  though  subject  to  a  contingency  over  which  the 
party  executing  it  has  no  control,  it  is  a  deed,46  but  if 
the  right  or  interest  does  not  pass  by  its  execution  and 
delivery,  it  is  a  will.47  It  is  not  necessary  that  the 
entire  instrument  be  of  a  testamentary  character.  If 
any  part  or  portion  of  it  becomes  operative  only  on  the 
death  of  the  party  who  executed  it,  it  should  be  pro- 
bated.48 

§  84.    Contestants  of  wills. 

A  will  may  be  contested  by  any  person  interested  in 
the  estate.  Such  persons  include  not  only  heirs  or  next 
of  kin,  but  also  a  creditor  and  a  judgment  creditor  of 
an  heir  of  one  seised  of  realty  at  the  time  of  his  death, 
provided  the  heir  is  not  a  devisee,49  legatee  or  per- 
son named  as  executor  under  a  prior  will,  still  in 
existence,  or  any  person  who  would  take  an  interest 
in  the  estate  under  the  statute  or  under  a  prior  will 
still  in  existence.50  If  an  infant  is  disinherited,  it  is 
proper  for  the  mother  or  any  near  relative  to  file  a 
contest  in  his  behalf.51  When  a  contest  has  been  insti- 
tuted by  a  party  who  would  otherwise  take  a  vested 

46  Jacksob  v.  Jackson   (Or.),  135  Pac.  200. 

47  Culy  v.  Upham,  135  Mich.  131,  97  N.  W.  405;  Thomas  v.  Williams, 
105  Minn.  88,  117  N.  W.  155;  Beebe  v.  McKinzie,  19  Or.  296,  24  Pac. 
236;  Deckenbach  v.  Deckenbach,  65  Or.  165,  137  Pac.  724. 

48  Palmer   v.  Bradley,   142   Fed.   193;   Shaw  v.   Camp,   163  111.   144, 
43  X.  E.  211. 

49  In  re    Langevin's    Will,  45    Minn.  429,  47    N.  W.  1133;    Murry  v. 
Hennesey,  48    Neb.  608,  67  N.  W.    470;  Colt  v.    DuBois,  7    Neb.  398; 
Christiansen  v.  Talmage  (Or.),  138  Pac.  453. 

50  In  re  Hunt's  Will,  122  Wis.  460,  100  N.  W.  874. 
61  Everson  v.  Hum,   89  Neb.   716,   131  N.  W.  1130. 

(127) 


§  84  PROBATE    AND    ADMINISTRATION.  [Chap.  8 

interest,  upon  his  death  his  personal  representative 
may  be  substituted.52 

Heirs  who  have  made  an  agreement,  for  a  valuable 
consideration,  with  their  ancestor  not  to  contest  his 
will,  are  precluded  from  filing  a  contest  unless  the  in- 
terests of  other  parties  may  be  affected  thereby.  Such 
agreement  does  not  relieve  the  proponent  from  estab- 
lishing the  necessary  facts,  but  merely  bars  the  parties 
from  taking  any  action  in  the  proceeding.53  Naming 
an  heir  as  executor  does  not  prevent  him  from  contest- 
ing.54 

A  stipulation  entered  into  between  all  the  heirs  and 
legatees  and  devisees  under  a  will  that  the  testator 
was  incapable  of  executing  a  valid  will  is  insufficient 
to  defeat  its  probate.55 

There  are  no  statutory  provisions  regulating  the  con- 
test of  wills  in  county  courts.  The  usual  practice  is  to 
file  objections  on  or  before  the  day  set  for  the  hearing, 
specifically  setting  out  the  grounds  of  the  contest.  No 
reply  is  necessary.  An  adjournment  may  be  had  to 
such  time  as  the  court  may  determine  or  the  parties 
agree  upon  to  enable  them  to  obtain  their  evidence. 

52  In  re  Wiltsey's  Will,  122  Iowa,  423,  98  N.  W.  294. 

53  Grochowski  v.  Grochowski,  77  Neb.  506,  109  N.  W.  742. 

54  In  re  Estate  of  Berry,  154  Iowa,  301,  130  N.  W.  867. 

55  In  re  Dardis'    Will,  135    Wis.  457,   115    N.  W.  332,  in  which  the 
court  held  the  rule  to  be  that  if  the  evidence  showed  the  testator 
to  be  of    sound    mind,  any    stipulation  or    agreement  was  inadmissible 
to  prove  him  otherwise. 

(128) 


Chap.  8]  PROBATE  OF  WILLS.  §  84 

Form  No.  26. 

OBJECTIONS  TO  THE  PROBATE  OF  A  WILU 
[Title  of  Cause  and  Court.] 

Comes  now  C.  B.,  a  son  of  A.  B.,  and  objects  to  the  probate  of 
the  instrument  purporting  to  be  the  last  will  and  testament  of  said 
A.  B.  for  the  following  reasons: 

First.     Said  instrument  is  not  executed  as  required  by  law. 

Second.     Said  instrument  is  not  properly  attested. 

Third.  Said  A.  B.,  at  the  time  alleged  in  said  instrument,  was  not 
possessed  of  sufficient  mental  capacity  to  make  a  will,  by  reason  of 
old  age  [insanity,  idiocy,  long-continued  use  of  intoxicating  liquors 
to  excess]. 

Fourth.  Said  instrument  was  executed  by  said  A.  B.  by  reason 
of  improper  and  undue  influence  exerted  upon  him  by  B.  H.,  who  is 
a  devisee  thereunder,  and  said  instrument  is  not  the  will  of  said  A.  B., 
but  of  said  B.  H. 

Fifth.  Said  instrument  has  been  revoked  by  implication  of  law 
[state  what  changes  in  the  family  or  circumstances  of  testator  it 
is  claimed  have  revoked  the  will]. 

Contestant  therefore  prays  that  said  instrument  may  be  set  aside, 
and  that  an  administrator  of  said  estate  may  be  appointed  to  take 
charge  thereof. 

Dated  this  day  of  ,  19—. 

(Signed)     C.  B. 

Under  the  Oregon  practice,  a  person  desiring  to 
contest  the  probate  of  a  will  or  its  validity  may  at  any 
time  within  one  year  after  its  probate  in  common  form 
file  a  petition  for  that  purpose  in  the  court  in  which  it 
was  probated.  Citation  thereupon  issues  to  the  execu- 
tor, or  administrator  with  the  will  annexed,  and  a 
hearing  had  for  the  probate  in  solemn  form.  A  party 
entitled  to  contest  who  is  laboring  under  a  legal  dis- 
ability may  file  such  petition  within  one  year  after  the 
removal  of  such  disability.56  The  result  of  filing  such 
petition  is  to  suspend  the  administration,  except  so 
far  as  is  necessary  to  conserve  the  estate,  until  the 
final  order  of  the  county  court  in  the  matter. 

M  L.  O.  L.,  §§  1143,  1135. 

8— Pro.  Ad.  (129) 


§  85  PROBATE   AND   ADMINISTRATION.  [Chap.  8 

The  petition  should  set  out  the  various  objections 
to  the  will,  pointing  out  the  particular  matters  on 
which  defendant  relies  for  defeating  its  probate.  Its 
allegations  should  be  broad  enough  and  specific  enough 
to  call  in  question  the  validity  of  the  will  and  the  suffi- 
ciency of  the  proof  as  to  its  execution.67  It  may  admit 
necessary  facts  and  formalities  regarding  its  execu- 
tion, and  as  to  such  admissions  evidence  on  the  part  of 
the  proponent  is  unnecessary.58  The  burden  of  proof 
is  on  the  proponent,  and  it  is  his  duty  to  establish  the 
will  by  original  proof  in  the  same  manner  as  though 
this  were  the  first  proceeding  or  action  to  prove  it.59 

§  85.    Evidence  of  mental  capacity. 

While  it  is  always  incumbent  on  the  proponent  in  a 
proceeding  for  the  probate  of  a  will,  whether  contested 
or  not,  to  prove  that  the  testator  was  of  sound  mind 
at  the  time  of  its  execution,  he  is  only  required  in  his 
opening  to  introduce  sufficient  testimony  to  make  a 
prima  facie  case  on  this  particular  branch  of  his  case. 
After  the  contestant  has  introduced  evidence  attack- 
ing testator's  sanity  or  mental  ability  or  capacity,  he 
can  then  go  as  fully  into  the  facts  as  could  a  plaintiff 
on  his  opening,  and  is  not  limited  to  rebutting  testi- 
mony.60 The  contestant  must  establish  his  defense  to 
the  prima  facie  case  on  his  opening,  and  after  the  pro- 
ponent has  closed,  is  limited  to  rebutting  testimony. 

57  In  re  Mendenhall's  Will,  43  Or.  547,  73  Pac.  1033. 

58  Hubbard  v.  Hubbard,   7   Or.  42;   Luper  v.  Werts,   19  Or.  42,  23 
Pac.  850;  In  re  Mendenhall's  Will,  43  Or.  547,  73  Pac.  1033. 

59  Hubbard  v.  Hubbard,  7  Or.  42;  Pickett's  Will,  49  Or.  140,  89  Pac. 
377;  Simpson  v.  Durbin,  68  Or.  518,  136  Pac.  47. 

60  Powers    v.    Peters,  79    Neb.    680,    113    N.    W.    198;    Seebrock  v. 
Fedawa,  30  Neb.  424,  46  N.  W.  650;  Kerr  v.  Lundsford,  31  W.  Va.  659, 
8  S.  E.  493;  Perkins  v.  Perkins,  39  N.  H.  163. 

(130) 


Chap.  8]  PROBATE  OF  WILLS.  §  85 

The  proponent  is  entitled  to  open  and  close  the  case 
under  the  general  rule  of  law  and  provision  of  the  code 
that  a  party  who  would  be  defeated  were  there  no  evi- 
dence introduced  shall  first  produce  his  evidence,  and 
is  entitled  to  open  and  close  the  argument.61  The  issue 
of  testamentary  capacity,  including  insanity  and  men- 
tal ability,  being  a  broad  one,  a  greater  latitude  is 
permitted  in  the  introduction  of  testimony  than  on  the 
trial  of  many  other  issues. 

Such  weaknesses  and  delusions  as  preclude  testa- 
mentary capacity  are  the  offsprings  of  a  deficient  or 
diseased  mind,  and  manifest  themselves  in  a  person's 
appearance,  conduct  and  demeanor.  Evidence  of  ab- 
surdities of  speech  or  conduct,  eccentricities  of  dress, 
chimerical  or  impracticable  theories,  lapses  of  memory, 
erroneous  ideas  in  regard  to  the  condition  of  one's 
property,  though  none  of  them  standing  by  themselves 
may  be  sufficient  to  show  that  the  testator  lacked  men- 
tal capacity,  are  admissible  in  evidence  for  the  purpose 
of  showing  his  state  of  mind,  and  because  when  con- 
sidered with  the  will  itself  and  all  the  circumstances 
and  conditions  connected  with  it  and  the  family  rela- 
tions and  circumstances  of  such  testator,  they  tend  to 
prove  that  his  mental  condition  was  such  that  he  did 
not  knowingly  and  understandingly  dispose  of  his 
property.62 

61  Brooks  v.  Butcher,  22  Neb.  644,  36  N.  W.  128. 

62  Morris  v.  Morton's  Exrs.  (Ky.),  20  S.  W.  287;  Lowder  v.  Lowder, 
58  Ind.  538;   Hathorn   v.  King,  8  Mass.  371;   Kerr   v.   Lundsford,  31 
W.  Va.  659,  8  S.  E.  493;  Haines  v.  Hayden,  95  Mich.  332,  54  N.  W. 
911;  Halley  v.  Webster,  21  Me.  461;  Lane  v.  Moore,  151  Mass.  87,  23 
N.  E.  828;  Frazer  v.  Jennison,  42  Mich.  220,  3  N.  W.  882;  Smith  v. 
Smith,  48  X.  J.  Eq.  566,  25  Atl.  11;   American  Bible  Society  v.  Price, 
115  111.  623,  5  N.  E.  126. 

(131) 


§  86  PBOBATE    AND    ADMINISTRATION.  [Chap.  8 

Where  delusions  are  shown  to  exist,  the  proponent 
may  show  that  they  have  an  apparent  cause,  namely, 
an  external  fact,  for  their  existence,  and  so  do  not  de- 
prive the  party  of  testamentary  capacity.63 

In  will  cases  in  which  the  mental  ability  is  questioned 
the  courts  will  generally  permit  a  review  of  transac- 
tions, conduct,  habits  and  manner  of  life  of  a  testator 
which  contestants  allege  make  him  incompetent  to 
make  a  valid  will  for  years  previous  to  the  execution 
of  the  instrument.64  Declarations,  admissions  and  the 
general  conduct,  manner  and  appearance  of  the  tes- 
tator after  the  execution  of  the  instrument  are  admis- 
sible for  the  purpose  of  showing  his  mental  capacity, 
but  must  be  confined  to  a  short  period  to  be  fixed  by 
the  court  according  to  the  circumstances  of  the  party.65 

§  86.    Expert  evidence. 

The  testimony  of  experts  on  mental  diseases — those 
who  have  made  a  study  of  the  subject,  and  are  able 
by  reason  of  experience  to  detect  symptoms  which  a 
less  experienced  eye  would  overlook — is  of  much  value. 
Such  witnesses  can  distinguish  between  the  symptoms 
indicative  of  the  natural  physical  decline  incident  to 
advanced  age,  and  which  are  consistent  with  testa- 
mentary capacity,  and  those  of  senile  dementia,  which 
is  recognized  as  a  disease  of  the  mind,  and  which  are 

63  Skinner's    Will,  40    Or.  671,  62    Pac.  523,  67  Pac.  951;  Wade  v. 
Northrup  (Or.),  140  Pae.  454;  Fulton  v.  Freeland,  219  Mo.  494,  118 
S.  W.   12. 

64  Isaac  v.  Halderman,  76  Neb.  283,  107  N.  W.  1016;  84  Neb.  251, 
120  N.  W.  116;  In  re  Frederick's  Estate,  83  Neb.  818,  119  N.  W.  667; 
In  re  Winch's  Estate,  84  Neb.  251,  120  N.  W.  116. 

65  in  re  Winch's  Estate,  84  Neb.  251,  120  N.  W.  116. 

(132) 


Chap.  8]  PROBATE  OF  WILLS.  §  86 

inconsistent  with  such  capacity.66  Testimony  of  this 
character  will  not  prevail  over  established  facts.  Posi- 
tive evidence  of  actual  facts  showing  a  knowledge  and 
understanding  of  a  testator's  affairs  and  of  his  rela- 
tives and  dependents,  though  medical  experts  agreed 
that  he  could  not  at  the  time  of  the  execution  of  the 
will  have  had  mental  power  sufficient  to  transact  a 
business  affair  requiring  a  continuous  exercise  of  the 
judgment  and  reasoning  faculties,  will  admit  it  to 
probate.67 

Nonexperts,  provided  they  have  observed  the  person 
in  question,  frequently,  and  for  a  considerable  period, 
may  be  permitted  to  state  whether  in  their  opinion  he 
was  sane,  after  first  detailing  the  facts  on  which  they 
base  their  opinions.68 

Subscribing  witnesses  to  a  will  are  competent  to 
testify  to  his  mental  capacity 69  without  qualifying  as 
experts,  or  other  foundation  testimony  than  that  of 
their  being  such  witnesses.70 

The  opinion  which  the  witness,  whether  expert  or 
nonexpert,  may  give  is  as  to  the  degree  of  intelligence 
actually  possessed  by  the  testator,  and  not  as  to  the 
direct  matter  in  issue  as  to  whether  he  had  testamen- 

ee  Kerr  v.  Lundsford,  31  W.  Va.  659,  8  S.  E.  493;  Kempsey  v.  Mc- 
Ginnis,  21  Mich.  123;  Garrus  v.  Davis,  234  HI.  811,  84  N.  E.  924; 
White  v.  McPherson,  183  Mass.  533,  67  N.  E.  643. 

67  Pickett's  Will,  49  Or.  127,  89  Pac.  377. 

65  Isaac  v.  Halderman,  76  Neb.  823,  107  N.  W.  1016;  Mollering  v. 
Kinneburg,  78  N-eb.  758,  111  N.  W.  788;  Schlenker  v.  State,  9  Neb. 
241,  1  N.  W.  857;  Pfluegger  v.  State,  46  Neb.  493,  64  N.  W.  1094. 

69  Parsons  v.  Parsons,  66  Iowa,  754,  21  X.  W.  570;  In  re  D' Avignon, 
12  Colo.  App.  489,  55  Pac.  936. 

70  Titlow  v.  Titlow,  54  Pa.  216,  95  Am.  Dec.  691. 

(133) 


§  87  PKOBATE    AND    ADMINISTRATION.  [Chap.  8 

tary  capacity.71  The  following  questions  regarding 
mental  ability  in  will  cases  have  been  approved  by  a 
long  line  of  Michigan  authorities,  proper  foundation 
having  been  laid  therefor:  "Was  the  testator,  in  your 
opinion,  at  the  time,  etc.,  capable  of  planning  and 
executing  such  a  paper  as  is  here  offered  as  his  will?" 
"Was  he  in  a  mental  and  physical  condition  to  trans- 
act business  requiring  an  exercise  of  the  judgment,  the 
reasoning  faculties,  and  a  consecutive  continuation  of 
thought?"72 

§  87.    Undue  influence — Definition. 

Undue  influence  may  be  defined  as  such  influence  as 
destroys  the  free  agency  of  the  testator,  prevents  the 
exercise  of  that  discretion  he  naturally  possesses,  and 
substitutes  another  person's  will  for  his  own.73  Where 
such  influence  is  once  shown  to'  exist,  and  the  mind  of 
one  person  has  acquired  such  a  power  over  another's 
mind  as  to  be  practically  substituted  for  it,  a  gift  by 
will,  by  the  weaker  to  the  stronger,  is  presumptively 
void,  and  the  burden  of  upholding  the  fairness  and 
validity  of  it  rests  upon  the  party  benefited  thereby.74 

The  Nebraska  supreme  court  lays  down  a  very  strin- 
gent rule  on  the  question  of  undue  influence.  It  holds 
that  "influence,  to  vitiate  a  will,  must  amount  to  force 
and  coercion,  destroying  the  free  agency  of  the  tes- 

71  Cheney  v.  Cheney,  78  Neb.  274,  110  N.  W.  731. 

72  Page  v.  Beach,  134  Mich.  51,  95  N.  W.  981. 

73  Johnson  v.  Armstrong,  97  Ala.  731,  12  South.  72;  Boggs  v.  Boggs, 
62  Neb.  274,  87  N.  W.  39. 

74  Garvin's  Admr.  v.  Williams,  44  Mo.  465;  Gay  v.  Gillilan,  92  Mo. 
264,  5  S.  W.  7;  Harvey  v.  Sullens,  46  Mo.  147;  Cudney  v.  Cuduey,  68 
N.  Y.  152;  Marx  v.  McGlynn,  88  N.  Y.  357. 

(134) 


Chap.  8]  PBOBATE  OF  WILLS.  §  88 

tator,  and  there  must  be  proof  that  the  will  was  ob- 
tained by  this  coercion,  and  it  must  be  shown  that  the 
circumstances  of  its  execution  are  inconsistent  with 
any  other  hypothesis  but  undue  influence,  which  can- 
not be  presumed,  but  must  be  proved,  and  in  connec- 
tion with  the  will,  and  not  with  other  things. ' ' 75  The 
court,  in  Latham  v.  Schaal,  followed  the  Michigan  case 
of  Maynard  v.  Vinton,76  a  case  which  has  been  ex- 
pressly overruled  by  the  Michigan  supreme  court  in 
Bush  v.  Delano,77  as  laying  down  a  rule  of  law  obvi- 
ously incorrect.  The  Missouri  supreme  court,  in  Gay 
v.  Gillilan,78  held  that  that  portion  of  the  above  requir- 
ing it  to  be  shown  that  the  circumstances  attending 
the  execution  of  the  will  "were  inconsistent  with  any 
other  hypothesis  than  undue  influence"  required  more 
than  a  preponderance  of  evidence  to  establish  the  con- 
testant's  case,  and  therefore  stated  an  incorrect  prin- 
ciple of  law. 

§  88.    Conditions  constituting  undue  influence. 

It  is  absolutely  impossible  to  lay  down  a  rule  defin- 
ing just  what  combination  of  facts  and  circumstances 
attending  the  execution  of  a  will  establish  undue  in- 
fluence, for  the  mental  and  physical  organizations  of  no 
two  persons  are  alike.  Different  minds  are  actuated 
by  different  motives  and  desires.  Circumstances  and 
surroundings,  treatment  by  relatives  and  those  likely 
to  be  the  objects  of  one's  bounty,  threats  and  im- 

75  Latham  v.  Schaal,  25  Neb.  535,  41   N.  W.  354;   McClary  v.  Stull, 
44  Neb.  175,  62  N.  W.  501;  Boggs  v.  Boggs,  62  Neb.  274,  87  N.  W.  39. 
7«  59  Mich.  139,  26  N.  W.  401. 

77  113  Mich.  321,  71  N.  W.  628. 

78  92  Mo.  264,  5  S.  W.  7. 

(135) 


§  88  PBOBATE    AND    ADMINISTRATION.  [Chap.  8 

portunities  may  not  have  the  slightest  effect  upon 
the  testamentary  capacity  of  one  person,  or  entirely 
destroy  that  freedom  of  volition  and  ability  to  volun- 
tarily make  a  disposition  of  one's  property  and  estate 
without  the  existence  of  which  no  instrument  can  be 
sustained  as  a  will.  Every  case  of  undue  influence, 
therefore,  must  stand  or  fall  on  its  own  merits,  and 
the  term  is  more  of  a  relative  than  an  absolute  one.79 
Pressure  of  whatever  character,  whether  acting  on  the 
fears  or  hopes,  if  so  exerted  as  to  overpower  the  voli- 
tion, without  convincing  the  judgment,  is  a  species  of 
influence  and  restraint  under  which  no  valid  will  can 
be  made.  Importunity  or  threats  such  as  the  testator 
has  not  the  strength  or  courage  to  resist,  moral  com- 
mand asserted  and  yielded  to  for  the  sake  of  peace 
and  quiet,  or  of  escaping  from  distresses  of  mind  and 
social  discomfort, — all  these,  if  carried  to  a  degree  in 
which  the  testator's  judgment,  discretion,  or  wishes 
are  overborne,  constitute  undue  influence,  though  no 
force  is  used  or  threatened.80  In  the  absence  of  fraud, 
there  must  be  such  a  degree  of  urgent  solicitation  that, 
under  the  circumstances,  and  considering  the  condi- 
tion of  testator's  mind  and  body,  he  was  too  weak  to 
resist  it,  and  acted  under  constraint  and  fear,  desire 
for  peace,  or  some  motive  other  than  affection  or  im- 
portant sense  of  duty,  contrary  to  his  real  intention.81 
In  order  to  invalidate  a  will,  it  must  have  been  an 
active  vital  force  at  the  time  the  instrument  was  exe- 

79  Boyd  v.  Boyd,  66  Pa.  293;  Moore's  Exrs.  v.  Blauvelt,  15  N.  J. 
Eq.   367. 

80  Hall  v.  Hall,  1  Prob.  Div.  481;  Darley  v.  Barley,  3  Bradf.  Sur. 
(N.  Y.)   508;    Small  v.    Small,  4    Greenl.  (Me.)  220;  Boyse    v.  Ross- 
borough,  6  H.  L.  Gas.  6. 

81  Boggs  v.  Boggs,  62  Neb.  274,  87  N.  W.  39. 

(136) 


Chap.  8]  PROBATE  OF  WILLS.  §  89 

cuted,  though  it  may  be  proved  to  have  existed  at  a 
previous  time.82 

Fraudulent  intent  is  not  an  essential  element  of  un- 
due influence,  although  almost  invariably  accompany- 
ing it.  Undue  influence  may  be  established  by  any 
competent  testimony  showing  that  the  volition  of  the 
testator  was  overpowered,  without  his  judgment  being 
convinced.  A  person  may  therefore  exert  such  a  power 
over  the  mind  of  another,  overruling  his  discretion  with 
only  the  best  and  most  disinterested  of  motives,  as  to 
render  his  will  executed  while  under  such  influences 
void.83 

§  89.    Undue  influence  and  mental  capacity. 

Undue  influence  is  generally  exercised  upon  those 
people  whose  mental  capacity  and  vigor  has  been  im- 
paired by  age,  disease  or  dissipation,  and  upon  those 
unfortunates  who  are  victims  of  monomania  or  par- 
tial insanity,  and  its  effect  is  frequently  to  produce 
monomania  or  insane  delusions  in  the  mind  of  the 
testator  in  regard  to  his  family  or  estate.84  In  all 
cases  where  it  is  alleged  to  have  been  the  moving  cause 
of  the  execution  of  the  will,  the  mental  capacity  of  the 
testator  should  be  carefully  considered,  for  the  one 
usually  involves  the  other.  It  is  often  difficult  to  draw 
the  line  between  the  two  issues.  The  acts  done  by 
a  person  of  sound  mind  are  presumed  to  be  of  his  own 
volition,  though  he  is,  of  course,  influenced  more  or 

82  Pooler  v.  Christman,  145  111.  405,  34  N.  E.  57. 

83  Stewart  v.  Elliott,  2  Mackey  (D.  C.),  307. 

84  In  re    Paisley's    Estate,  91    Neb.  139,  135    N.  W.  435;  Purdy  v. 
Howe,  134  111.  298,  28  N.  E.  643;  Haines  v.  Hayden,  95  Mich.  324,  54 
N.  W.  912. 

(137) 


§  90  PROBATE    AND   ADMINISTRATION.  [Chap.  8 

less  by  the  opinions  of  his  friends  and  of  the  public 
generally,  and  by  surrounding  circumstances  and  con- 
ditions. The  fact  that  a  person  has,  by  any  means 
whatsoever,  overcome  his  volition  without  convincing 
his  judgment,  may  be  justly  considered  as  evincing  a 
lack  of  mental  capacity. 

It  has  been  held,  in  cases  where  it  is  alleged  that  the 
pretended  will  is  the  result  of  delusions  fostered  by 
another,  and  therefore  void,  the  issue  is,  not  strictly 
speaking,  the  sanity  of  the  testator,  but  undue  influ- 
ence, and  an  instruction  defining  undue  influence  was 
proper.85 

A  person  of  enfeebled  mental  vigor  has  less  strength 
with  which  to  resist  the  importunities,  threats  or 
coercion  of  a  person  of  strong  mind  who  works  adroitly 
and  shrewdly  to  influence  him  in  making  a  disposition 
of  his  property.86 

Undue  influence  being  a  defense,  the  contestant  must 
establish  it  by  a  preponderance  of  the  evidence.87 

§  90.  Unjust  provisions  evidence  of  undue  influence. 
The  terms  of  a  will  often  present  strong  evidence 
why  it  should  not  be  treated  as  a  valid  instrument. 
While  a  testator  has  a  right  to  dispose  of  his  property 
by  his  will  as  he  wishes,  subject  to  certain  restric- 
tions,88 and  is  under  no  obligation  to  his  children,89  the 

85  McLary  v.  Stull,  44  Neb.  175,  62  N.  W.  501;  Thompson  v.  Hawks, 
14  Fed.  902;  Mann.  Med.  Jur.  Insan.  165. 

86  In  re  Paisley's  Estate,  91  Neb.  139,  135  N.  W.  435;  Cadwallader 
v.  West,  48  Mo.  483;  Dye  v.  Young,  55  Iowa,  433,  7  N.  W.  678. 

87  Webber  v.   Sullivan,   58   Iowa,   260;    Baldwin   v.   Parker,   99   Mass. 
79;  Hardy  v.  Merrill,  56  N.  H.  227;  Bankin  v.  Eankin,  61  Mo.  295. 

88  Section  27,  supra. 

89  In  re  Goldthorpe's  Estate,  115  Iowa,  430,  88  N.  W.  944. 

(138) 


Chap.  8]  PROBATE  OF  WILLS.  §  90 

law  presumes  that  he  will  not  entirely  overlook  those 
of  his  own  family. 

A  will  unjust  in  its  provisions,  and  inconsistent  with 
the  duties  of  the  testator  with  reference  to  his  property 
and  his  family,  standing  by  itself,  and  without  the 
light  of  other  testimony,  is  evidence  of  undue  influ- 
ence, on  the  theory  that  it  shows  the  mental  condition 
of  the  testator  at  the  time  it  was  executed.90 

These  unjust  and  inequitable  provisions  do  not,  as 
a  general  rule,  raise  a  conclusive  presumption  of  undue 
influence  or  want  of  testamentary  capacity.  They  are 
considered  as  important  circumstances  in  connection 
with  other  facts  bearing  on  the  testator's  mind,  and 
an  element  tending  to  establish  it.91  The  inequality 
or  inequity  of  the  provisions  need  not  appear  on  the 
face  of  the  will,  but  may  be  shown  by  evidence  of  the 
relationship  of  alleged  testator  to  the  contestant,  and 
his  financial  conditions  and  circumstances.92  The  un- 
just and  inequitable  provisions  of  a  will  executed  by 
a  testator  of  advanced  age,  of  weak  mental  and  physi- 
cal condition,  when  an  opportunity  for  the  exercise  of 
undue  influence  was  shown,  would  invalidate  a  will, 
a  less  degree  of  proof  being  required  than  where  the 

90  In  re  Paisley's  Estate,  91  Neb.  134,  135  N.  W.  435;  In  re  Fred- 
erick's Estate,  83  Neb.  318,  119  N.  W.  667;  Latham  v.  Schaal,  25  Neb. 
540,  41  N.  W.  354;  Knox  v.  Knox,  95  Ala.  495,  11  South.  125;  Crandall's 
Appeal,  63  Conn.  365,  28  Atl.  531;  Hammond  v.  Dike,  42  Minn.  273, 
44  N.  W.  61;  Lynch  v.  Clements,  24  N.  J.  Eq.  431;  Henrich  v.  Saier, 
124  Mich.  86,  82  N.  W.  879. 

91  In  re  Hess'  Will,  48  Minn.  504,  51  N.  W.  614;    Maddox  v.  Mad- 
dox,   114  Mo.  35,  21  S.  W.  499;   Manatt  v.   Scott,   106  Iowa,  203,   76 
N.  W.  717. 

92  Sim  v.  Russell,  90  Iowa,  656,  57  N.  W.  601;  Manatt  v.  Scott,  106 
Iowa,  203,  76  N.  W.  717. 

(139) 


§  90  PROBATE    AND    ADMINISTRATION.  [Chap.  8 

testator  is  of  strong  mental  and  physical  vigor.93  In 
some  instances,  unjust  and  inequitable  provisions  will, 
of  themselves,  raise  a  strong  presumption  of  undue 
influence.  Gross  inequalities  in  the  provisions  of  the 
instrument,  where  no  reasons  for  it  are  suggested, 
either  in  the  will  or  otherwise,  may  be  more  than  evi- 
dence only  tending  to  show  the  existence  of  undue  in- 
fluence,— they  may  be  so  rank  as  to  change  the  burden 
of  proof,  and  require  an  explanation  on  the  part  of 
those  who  support  the  will  to  establish  that  it  was  the 
free  and  unbiased  expression  of  a  rational  and  clearly 
disposing  mind.94 

It  has  been  held  that  a  will  made  by  a  person  in  his 
last  illness,  his  mental  capacity  being  enfeebled  by  age 
and  disease,  containing  provisions  wholly  at  variance 
with  his  former  expressed  intentions,  giving  his  prop- 
erty to  comparative  strangers,  who  have  no  claims 
upon  his  bounty,  is  prima  facie  invalid,  the  law  pre- 
suming undue  influence  from  his  surroundings,  and 
putting  upon  the  beneficiary  the  burden  of  showing 
affirmatively  that  he  did  not  exercise  his  power  over 
the  testator  to  Kis  own  advantage,  and  to  the  disadvan- 
tage of  those  having  an  equal  or  superior  claim  upon 
the  testator's  bounty.95 

93  Wilson's    Appeal,  99    Pa.  545;    Clark  v.  Stansbury,  49    Md.  d46; 
Eollwagen  v.  Eollwagen,  63  N.  Y.  504. 

94  Farrell  v.  Farrell,  1  Duv.  (Ky.)  203;  Higgins  v.  Carlton,  28  Md. 
115;  Eastis  v.  Montgomery,  93  Ala.  293,  9  South.  311;  Moore's  Exrs. 
v.  Blauvelt,  15  N.  J.  Eq.  367;  Sears  v.  Shafer,  6  N.  Y.  268. 

»5  Dale  v.  Dale,  38  N,  J.  Eq.  274;  Carroll  v.  House,  48  N.  J.  Eq.  269, 
22  Atl.  191. 

(140) 


Chap.  8]  PROBATE    OF    WILLS.  §  91 

§  91.  Undue  influence  of  person  holding  special  rela- 
tion of  trust. 

The  courts  always  view  with  suspicion  any  apparent 
attempt  of  any  person  to  use  the  trust  or  confidence 
another  reposes  in  him  for  his  own  personal  aggran- 
dizement; therefore,  a  will  in  favor  of  one  occupying 
a  fiduciary  or  trust  relation  to  the  testator,  and  par- 
tially or  wholly  excluding  the  natural  objects  of  his 
bounty,  such  as  a  will  in  favor  of  one's  attorney,  or 
spiritual  or  medical  adviser,  is  viewed  by  the  courts 
with  suspicion,  and,  in  connection  with  other  facts, 
raises  a  presumption  of  invalidity,  though,  standing 
by  itself,  it  is  not  conclusive.  In  New  York  it  has  been 
held  that,  where  a  will  was  offered  for  probate  which 
devised  practically  all  testator's  property  to  his  spir- 
itual adviser,  proof  of  the  execution  of  the  will  was 
not  sufficient  to  entitle  it  to  probate, — evidence  should 
be  introduced  to  show  that  the  testator  acted  volun- 
tarily and  without  persuasion.96  Courts  do  not  gen- 
erally carry  the  rule  so  far  as  in  the  Marx  Case.  In 
order  to  establish  undue  influence,  they  require  evi- 
dence of  other  facts  and  circumstances  which  show  a 
domination  of  one  will  over  that  of  another,  overcom- 
ing the  volition,  without  convincing  the  judgment.97 

The  larger  the  gift  in  proportion  to  the  residue  of 
the  estate,  the  stronger  the  presumption  of  the  use  of 
improper  means.  If  it  be  shown  that  the  person  hold- 
ing the  position  of  trust  has  exercised  a  strong  influ- 
ence over  the  testator  in  the  transaction  of  his  ordinary 

»6  Marx  v.  McGlynn",  88  N.  Y.  357. 

97  Waddington  v.  Buzby,  45  N.  J.  Eq.  173,  16  Atl.  690;  In  re  Brom- 
ley's Estate,  113  Mich.  53,  71.  N.  W.  523;  Post  v.  Mason,  91  N.  Y.  539; 
Adair  v.  Adair,  30  Ga.  102. 

(141) 


§  91  PBOBATE    AND   ADMINISTRATION.  [Chap.  8 

business,  and  that  circumstances  indicate  an  intention 
on  his  part  to  dominate  and  control  the  will  of  the 
testator  generally,  it  would  establish  such  a  corrobo- 
rating circumstance  as  would  justify  a  court  or  jury 
in  finding  the  will  to  be  in  effect  the  product  of  another 
mind  than  that  of  the  testator.98  In  all  cases  of  this 
nature  a  less  degree  of  proof  is  necessary  to  set  aside 
the  will,  where  it  appears  that  the  testator  was  by 
nature  of  a  weak  mind,  or,  by  reason  of  disease  or  old 
age,  did  not  possess  his  former  mental  and  physical 
vigor; "  and  if  a  codicil  or  a  new  will  is  prepared  by 
a  confidential  adviser,  cutting  down  legacies  and  mak- 
ing extensive  changes  which  inure  to  the  benefit  of 
such  adviser,  and  to  the  injury  of  the  legatees  in  a 
former  will,  executed  while  the  testator  was  in  good 
health  and  possessed  of  a  strong  mind,  these  facts  have 
been  held  to  raise  such  a  presumption  of  wrongful  in- 
fluence as  to  lay  upon  the  proponent  the  burden  of 
showing  affirmatively  that  the  testator's  mind  was  free 
from  undue  influence,  and  that  he  was  not  controlled 
by  his  adviser.100  The  same  rule  also  applies  when  one 
or  more  of  the  children  or  heirs  of  the  testator  are  the 
recipients  of  his  bounty,  to  the  exclusion  of  the  others. 
The  books  are  full  of  cases  in  which  the  courts  have 
set  aside  wills  for  the  reason  that  a  favorite  son  or 
daughter  or  other  relative  has  abused  the  trust  reposed 
in  him,  and  by  crafty  insinuations  and  devices,  and 

98  Horah    v.    Knox,    87    N.    C.    483;    Seiter    v.    Straub,  1  Dem.  Sur. 
(N.  Y.)  264;  Wilson  v.  Moran,  3  Bradf.  Sur.  (N.  Y.)  180. 

99  Eckert  v.  Flowry,  43  Pa.  46;  In  re  Paisley's  Estate,  91   Neb.  139, 
135  N.  W.  435. 

100  Delafield  v.  Parish,  25  N.  Y.  35;  Yardley  v.  Cuthbertson,  108  Pa. 
395. 


Chap.  8]  PROBATE  OF  WILLS.  §§92,93 

sometimes  even  by  force,  obtained  the  execution  of  a 
will  to  his  own  liking. 

§  92.    Undue  influence  of  draftsman  of  a  will. 

The  fact  that  the  person  who  drafted  the  will  is  the 
principal  beneficiary  may  or  may  not  raise  a  presump- 
tion of  undue  influence.  It  depends  on  whether  he  is  or 
not  a  person  who,  on  account  of  relationship  or  other- 
wise would  most  likely  be  the  recipient  of  the  testator's 
bounty.101  Thus,  a  will  drafted  by  a  son  for  his  father, 
which  devised  the  greater  portion  of  the  estate  to  the 
son,  raises  per  se  no  presumption  of  undue  influence. 
A  will  drafted  by  a  person  not  related  to  the  testator, 
and  to  whom  he  is  under  no  obligation,  as,  for  in- 
stance, his  attorney,  giving  him  all  or  nearly  all  of  his 
estate,  does  raise  such  a  presumption,  but  not  a  con- 
clusive one.102  Where  the  person,  not  an  heir,  who 
drafts  the  will  or  assists  in  procuring  its  provisions 
from  the  testator  also  occupies  a  relation  of  especial 
confidence  toward  him,  the  fact  that  be  is  especially 
benefited  by  the  terms  of  the  instrument,  to  the  injury 
of  the  heirs,  casts  upon  him  the  burden  of  showing  that 
he  has  acted  fairly.103 

§  93.    Execution  of  will  obtained  by  fraud. 

Fraud,  of  course,  vitiates  a  will,  as  it  does  all  other 
instruments.  If  the  signature  of  the  testator  was  ob- 
tained by  any  fraudulent  trick  or  device,  as  by  reading 

101  Stirling  v.  Stirling,  64  Md.  138,  21  Atl.  273;   King  v.  Holmes, 
84  Me.  219,  24  Atl.  819;  Appeal  of  Richmond,  59  Conn.  226,  22  Atl.  82. 

102  In  re  Bromley's  Estate,  113  Mich.  53,  71  N.  W.  523. 

103  Chandler  v.    Jost,  96    Ala.  596,  11  South.  636;  Dale  v.  Dale,  38 
N.  J.  Eq.  274;  Carroll  v.  House,  48  N.  J.  Eq.  269,  22  Atl.  191. 

(143) 


§  93  PEOBATE   AND   ADMINISTRATION.  [Chap.  8 

it  incorrectly,  or  by  misrepresenting  its  conditions,  or 
by  substituting  another  instrument  in  the  place  of  the 
one  the  testator  supposed  he  was  signing,  the  will 
should  be  set  aside.104  Circumvention  by  means  of 
fraud  is  considered  in  the  same  light  as  restraint  by 
force,  and  will  have  the  same  effect  as  restraint  in 
setting  aside  a  will.105  If  no  question  is  raised  as  to 
the  testator's  possessing  a  sound  mind,  the  presump- 
tion arising  from  a  regular  execution  of  his  will  is  that 
he  was  acquainted  with  its  contents,  and  no  evidence 
upon  that  fact  need  be  adduced  on  the  opening,  or, 
where  there  is  no  contest.  A  contestant  seeking  to  im- 
peach the  will  on  this  ground  must  show  conclusively 
that  the  testator  was  imposed  upon; 106  but  if  the  will 
was  executed  while  he  was  in  extremis,  and  was  not 
read  to  him  or  explained  to  him  afterward,  the  pro- 
ponent must  show  affirmatively  that  the  testator  had 
a  knowledge  of  the  contents  of  the  instrument.107  Such 
knowledge  may  be  established  by  evidence  that  the  pro- 
visions of  the  will  are  in  accord  with  the  instructions 
given  by  the  testator  to  the  draftsman,  or  by  any 
other  circumstances  going  to  show  the  same.108 

Where  it  appears  that  the  will  was  signed  by  the 
testator  without  being  read  to  or  by  him,  but  on  the 
assurance  that  it  expressed  his  desires,  the  fact  that 
its  provisions  are  different  from  the  instructions  given 
by  him  to  the  draftsman  is  sufficient  to  set  it  aside; 

104  Potter's  Appeal,  33  Mich.  106,  18  N.  W.  575. 

105  Miller  v.  Miller,  3  Serg.  &  E.  (Pa.)   267. 

106  Pettes  v.  Bingham,  10  N.  H.  514;  Day  v.  Day,  3  N.  J.  Eq.  549, 
551. 

107  Blume  v.  Hartman,  115  Pa.  32,  8  Atl.  219. 

108  Day  v.  Day,  3  N.  J.  Eq.  549;  In  re  Eeed's  Will,  20  N.  Y.  Supp.  91. 

(144) 


Chap.  8]  PKOBATE  OF  WILLS.  §  94 

and  this  is  true,  although  no  wrongful  or  fraudulent 
intent  is  shown  on  the  part  of  any  person  interested, 
but  only  a  misunderstanding  of  the  facts.109 

§  94.    Evidence  of  undue  influence  and  fraud. 

Undue  influence  and  fraud  usually  go  hand  in  hand, 
and  are  seldom  capable  of  direct  proof.  Both  must 
be  proved;  they  can  never  be  presumed.  They  are 
almost  invariably  exercised  secretly,  in  a  clandestine 
manner,  and  are  established  by  facts  and  circum- 
stances, taken  together,  and  from  the  natural  infer- 
ences which  are  drawn  from  the  general  character  of 
the  transactions,  and  will  satisfy  an  ordinary,  unpreju- 
diced mind  that  they  existed.110 

It  is  a  difficult  matter  to  draw  the  line  on  the  admis- 
sibility  of  evidence  in  cases  where  undue  influence  is 
set  out  by  a  contestant,  for  the  reason  that  a  combina- 
tion of  facts  and  circumstances  which  might  have  had 
an  important  influence  over  the  mind  of  one  person 
would  in  no  wise  affect  another.  The  court  must  de- 
termine in  each  particular  case,  and  from  the  general 
nature  of  the  evidence,  whether  facts  and  circum- 
stances sought  to  be  introduced  throw  any  light  on 
the  transaction,  or  are  wholly  irrelevant.111 

To  set  aside  an  instrument  executed  as  will  on  the 
ground  that  the  mind  of  the  testator  was  so  completely 

109  Waite  v.  Frisbie,  45  Minn.  361,  47  N.  W.  1069. 

no  Ross  v.  Miner,  67  Mich.  410,  35  N.  W.  60;  Porter  v.  Throop,  47 
Mich.  313,  11  N.  W.  174;  Howe  v.  Howe,  99  Mass.  88;  Armstrong  v. 
Armstrong,  63  Wis.  162,  23  N.  W.  407;  In  re  Humphrey,  26  N.  J.  Eq. 
513;  Clapp  v.  Fullerton,  34  N.  Y.  197;  Rivard  v.  Rivard,  109  Mich. 
Ill,  66  N.  W.  686. 

in  Heath  v.  Page,  63  Pa.  108;  Zerbe  v.  Miller,  16  Pa.  488;  Boylston 
v.  Carver,  11  Mass.  515. 
10— Pro.  Ad. 


§  94  PBOBATE    AND   ADMINISTRATION.  [Chap.  8 

under  the  control  of  another  as  to  deprive  him  of  his 
volition  without  convincing  his  judgment,  two  ele- 
ments must  be  established:  First,  the  actual  existence 
of  the  influence  or  deception;  second,  that  such  influ- 
ence or  deception  was  effective  in  producing  the  act 
alleged, — overcoming  the  volition  of  the  party  so  far 
as  this  particular  act  is  concerned.112 

These  elements  are  established  by  evidence  of  tes- 
tator's general  character,  habits,  business  and  domes- 
tic relations,  physical  and  mental  condition,  surround- 
ings and  circumstances,  both  previous  to  the  execution 
of  the  will  and  for  a  short  period  thereafter.113 

In  all  cases  where  the  testamentary  capacity  of  the 
testator  is  attacked  or  undue  influence  is  alleged  as  a 
moving  cause  for  the  will,  the  proponent  should  pro- 
duce the  evidence  of  all  the  subscribing  witnesses,  if 
living,  competent  and  within  the  jurisdiction  of  the 
court.114  The  rule  forbidding  a  party  to  impeach  his 
own  witnesses  does  not  apply  in  such  cases,  and  a  will 
may  be  sustained  though  the  subscribing  witnesses 
swear  that  he  is  incompetent.115 

112  Shailer  v.  Bumstead,  99  Mass.  112. 

H3  In  re  Winch's  Estate,  84  Neb.  251,  112  N.  W.  116;  In  re  Paisley's 
Estate,  91  Neb.  139,  135  N.  W.  435;  McCoy  v.  Conrad,  64  Neb.  105,  89 
N.  W.  665;  Thompson  v.  Thompson,  49  Neb.  157,  68  N.  W.  372;  Latham 
v.  Schaal,  25  Neb.  535,  41  N.  W.  354;  Manatt  v.  Scott,  106  Iowa,  203, 
76  N.  W.  717;  Bever  v.  Spaiigler,  93  Iowa,  603,  61  N.  W.  1080;  In  re 
Goldthorp's  Estate,  94  Iowa,  336,  62  N.  W.  845;  In  re  Morgan's  Will, 
110  Wis.  7,  85  N.  W.  644;  Betts  v.  Betts,  113  Iowa,  111,  84  N.  W.  975. 

114  Jackson  v.  Vickery,  1  Wend.  (N.  Y.)  414;  Severance  v.  Carr,  42 
N.  H.  65. 

H5  Brown  v.  Buckley,  14  N.  J.  Eq.  294;  Howell  v.  Taylor,  50 
N.  J.  Eq.  428,  26  Atl.  656;  Whitman  v.  Morey,  63  N.  H.  448,  2  Atl.  899. 

(146) 


Chap.  8]  PROBATE  OP  WILLS.  §§95,96 

§  95.    Will  of  person  under  guardianship. 

Though  it  is  an  established  rule  that  the  fact  that 
a  person  has  been  adjudged  incompetent  does  not  pre- 
vent his  making  a  valid  will,116  such  record,  if  made 
previous  to  the  date  of  the  will,  is  prima  facie  evidence 
of  testamentary  incapacity,117  but  may  be  rebutted  by 
showing  that  the  will  was  executed  during  a  lucid 
interval,118  or  by  evidence  showing  testamentary  capa- 
city.11* In  Re  Cowdery,120  it  was  held  that  the  ap- 
pointment of  a  guardian  of  a  person  lacking  mental 
capacity  to  care  for  his  property  was  not  even  prima 
facie  evidence  of  want  of  testamentary  capacity. 

The  appointment  of  a  guardian  or  commitment  to 
an  insane  asylum  some  time  after  the  will  was  executed 
is  immaterial.121 

§  96.    Declarations  of  testator. 

Statements  or  declarations  of  the  testator  previous 
to  the  date  of  the  will,  in  regard  to  his  proposed  dis- 
position of  his  estate  and  his  family  relations,  are 
admissible  for  the  purpose  of  showing  testamentary 
capacity,  and  whether  the  disposition  of  the  property 
as  made  by  the  will  was  the  result  of  undue  influence.122 

116  Sections  50,  53,  supra. 

H7  Lewis  v.  Jones,  50  Barb.  (N.  Y.)  645. 

us  Section  55,  supra. 

119  In  re  Ayer's  Estate,  84  Neb.  16,  120  N.  W.  491;  King  v.  Gilson, 
191  Mo.  307,  90  S.  W.  367;  Draper's  Estate,  215  Pa.  314,  64  Atl.  520. 

120  77  Vt.  359,  60  Atl.  341. 

121  Entwistle  v.  Meikle,  180  HI.  9,  54  N.  E.  217;  Schmidt's  Succes- 
sion, 125  La.  1065,  52  South.  160. 

122  Beaubien  v.  Cicotte,  12  Mich.  459;  Harring  v.  Allen,  25  Mich. 
508;  Bush  v.  Delano,  113  Mich.  321,  71  N.  W.  628;  Mooney  v.  Olson, 
22  Kan.  69;  In  re  Will  of  Hollingsworth,  58  Iowa,  527,  12  N.  W.  509; 

(147) 


§  97  PROBATE   AND   ADMINISTRATION.  [Chap.  8 

Those  made  after  the  will  was  executed  to  the  effect 
that  he  was  controlled  by  others,  or  that  the  will  was 
not  exactly  as  he  wished,  or  that  he  finally  yielded 
to  persuasion,  are  admissible  for  the  purpose  of  show- 
ing the  force  and  extent  of  the  influence  exerted  upon 
him  and  whether  or  not  it  was  such  as  to  overcome  his 
volition  without  convincing  his  judgment.123 

Letters  and  diaries  of  the  testator  both  before  and 
after  the  date  of  the  will  are  admitted  not  as  evidence 
of  the  facts  therein  contained  but  for  the  purpose  of 
showing  the  condition  of  testator's  mind  and  the  in- 
fluences that  operated  upon  it,124  and  former  wills  of 
the  testator  are  also  admissible.125 

The  length  of  time  which  may  be  covered  by  such 
statements  and  admissions  depends  upon  the  condi- 
tions of  the  particular  case.126 

§  97.  Fraud  and  undue  influence — By  whom  shown. 
The  provision  of  the  Civil  Code  restricting  the  tes- 
timony of  a  party  when  the  opposing  party  is  the 
representative  of  a  decedent  does  not  apply  to  heirs 
and  next  of  kin  in  will  contests.  They  may  testify 

In  re  Goldthorp's  Estate,  94  Iowa,  336,  62  N.  W.  846,  99  N.  W.  944; 
Kerrigan  v.  Leonard  (N.  J.),  8  Atl.  503. 

123  Rusling  v.  Rusling,  36  N.  J.  Eq.  603;  Stephenson  v.  Stephenson, 
62  Iowa,   163,   10   N.  W.  456;   Parsons  v.  Parsons,   66   Iowa,   754,   21 
N.  W.  570;  Potter  v.  Baldwin,  133  Mass.  427;  Nelson  v.  McClanahan, 
55  Cal.  308. 

124  Marx  v.  McGlynn,  88  N.  Y.  357;  In  re  Blakoley's  Will,  48  Wis. 
494,  4  N.  W.  337. 

125  Whitman  v.  Morey,  63  N.  H.  448,  2  Atl.  889. 

126  Haines  v.  Hayden,  95  Mich.  332,  54  N.  W.  914;  Porter  v.  Troop, 
47  Mich.  313,  11  N.  W.  174. 

(148) 


Chap.  8]  PROBATE  OF  WILLS.  §  97 

to  transactions  and  conversations  with  the  testator.127 
But  a  party  not  an  heir,  though  a  legatee  or  devisee, 
cannot  testify  as  to  such  conversations  or  transaction, 
but  becomes  a  competent  witness  when  they  occurred 
in  his  presence  between  decedent  and  a  third  party 
and  he  took  no  part  therein.128 

Declarations  by  a  devisee  or  legatee  that  he  had 
exercised  a  strong  influence  over  the  testator  are 
admissible  as  declarations  against  interest.129  State- 
ments made  by  such  party  previous  to  the  death  of 
testator  that  he  was  incapable  of  making  a  valid  will 
are  conclusions  of  law  and  inadmissible.130 

An  attorney  who  drafted  a  will  and  gave  advice  con- 
cerning it,131  and  any  person  who  becomes  a  witness 
to  a  will  at  testator's  request,  are  always  competent  to 
testify  to  all  the  facts,  circumstances  and  surround- 
ings attending  its  execution,  as  well  as  on  the  question 
of  testamentary  capacity.132 

A  devisee  or  legatee  is  a  competent  witness  as  to 
the  appearance,  habits  and  manner  of  life  of  the  tes- 

127  McCoy  v.  Conrad,  64  Neb.  150,  89  N.  W.  655  j  Williams  v.  Miles, 
68  Neb.  463,  94  N.  W.  705,  96  N.  W.  151. 

128  Powers  v.  Peters,  79  Neb.  680,  113  N.  W.  198. 

129  Carlton    v.    Patterson,  29    N.  H.    596;    Carpenter    v.  Hatch,  64 
N.  H.  573;  Atkinson  v.  Sanger,  1  Pick.  (Mass.)  192. 

130  Eenaud  v.  Pageot,  102  Mich.  568,  61  N.  W.  3;  O'Connor  v.  Madi- 
son, 98  Mich.  183,  57  N.  W.  105. 

131  In  re  Downing's  Will,  118  Wis.  581,  95  N.  W.  876. 

132  In  re    Will  of    Coleman,  11  N.  Y.  229,  19    N.  E.  73;  Doherty  v. 
O'Callaghan,  157  Mass.  90,  31  N.  E.  726;  Scott  v.  Harris,  113  111.  454; 
Pence  v.  Waugh,  135  Ind.  143,  44  N.  E.  863;  Denning  v.  Butcher,  91 
Iowa,  425,  59  N.  W.  71. 

(149) 


§§98,99  PKOBATE    AND    ADMINISTRATION.  [Chap.  8 

tator  when  such  knowledge  is  obtained  from  observa- 
tion, rather  than  personal  transactions.133 

§  98.    Effect  of  will  obtained  by  fraud  or  undue  in- 
fluence. 

A  will  obtained  by  fraud  or  undue  influence  is  void 
at  its  inception.  Subsequent  acknowledgments  of  it, 
either  verbal  or  written,  do  not  make  it  valid.  Evi- 
dence of  such  statements  are  admissible  for  the  pur- 
pose of  showing  its  execution,  but  to  convey  real  or 
personal  property,  it  must  be  re-executed  and  re- 
acknowledged, — in  effect  made  a  new  will.134 

§  99.    Invalid  bequest  or  devise. 

It  is  no  objection  to  the  probate  of  a  will  contain- 
ing one  or  more  valid  bequests  that  a  particular 
bequest  or  devise  is  invalid  on  the  ground  that  the 
beneficiary  thereof  is  incapable  of  taking  or  holding 
the  property  thereby  sought  to  be  disposed  of.  The 
will  in  such  case  should  be  proved  for  the  purpose  of 
giving  effect  to  the  valid  bequests,135  or  to  the  clause 
revoking  all  former  wills,  if  it  contain  such  clause.13* 

133  Denning  v.  Butcher,  91  Iowa,  425,  59  N.  W.  71;  Smith  v.  James, 
72  Iowa,  516,  34  N.  W.  309;  Sankey  v.  Cook,  82  Iowa,  125,  47  N.  W. 
1077. 

134  Chaddock  v.  Haley,  81  Tex.  617,  17  S.  W.  233;  Haines  v.  Hayden, 
95  Mich.  832,  54  N.  W.  911. 

135  McClary  v.  Stull,  44  Neb.  175,  62  N.  W.  501;  Sumner  v.  Crane, 
155   Mass.   483,  29   N.   E.   1151;   Farmer  v.   Sprague,   57   Wis.  324,   15 
N.  W.  382;  In  re  Merriam,  136  N.  Y.  58,  32  N.  E.  621;  Dudley  v.  Gates, 
124  Mich.  440,  83  N.  W.  97. 

136  Powell,  Devises,  116;  Dudley  v.  Gates,  124  Mich.  440,  83  N.  W. 
97. 

(150) 


Chap.  8]  PROBATE  OP  WILLS.  §§100,101 

A  county  court  is  not  empowered  to  construe  wills 
when  they  are  presented  for  probate.137  Their  con- 
struction is  a  matter  of  after  consideration,  after  it 
has  been  determined  that  they  were  executed  by  com- 
petent testators  in  the  manner  required  by  law. 

§  100.    Omitting  reference  to  children. 

The  fact  that  a  testator  makes  no  provision  for  some 
of  his  children  in  his  will,  and  even  neglects  to  name 
them,  affords  no  ground  for  refusing  probate  of  the 
will;  neither  does  the  birth  of  a  posthumous  child,  for 
whom  the  will  makes  no  provision.138  The  latter  is 
given  the  same  share  in  the  property  of  his  parent 
which  he  would  have  received  had  the  parent  died  in- 
testate, and,  if  the  former  can  establish  that  his  name 
was  omitted  by  mistake  or  inadvertence,  he  is  entitled 
to  the  same  right.139  Of  course,  the  failure  of  a  parent 
to  mention  his  child's  name  in  his  will  may  be  pre- 
sumptive evidence  of  undue  influence  or  of  incapacity, 
requiring  but  little  other  evidence  to  make  the  instru- 
ment void. 

In  Oregon,  both  take  the  same  share  they  would  if 
decedent  had  died  intestate.139* 

§  101.    Probate  of  foreign  wills. 

Any  will  which  has  been  duly  probated  and  allowed 
in  any  of  the  United  States,  or  in  any  foreign  country 
or  state,  according  to  the  laws  of  such  state  or  country, 

137  In  re  John's  Will,  30  Or.  494,  47  Pac.  341,  50  Pac.  226;  Byrne 
v.  Hume,  84  Mich.  185,  47  N.  W.  679. 

138  Mclntire  v.  Mclntire,  64  N.  H.  609,  15  Atl.  218. 

139  Rev.  Stats.,  c.  17,  §§  47,  48,  [1311],  [1312]. 
I3»a  L.  O.  L.,  $  7325. 

(151) 


§  101  PROBATE   AND   ADMINISTRATION.  [Chap.  8 

may  be  allowed,  filed,  and  recorded  in  the  county  court 
of  any  county  in  which  the  testator  may  have  real  or 
personal  estate  on  which  the  same  may  operate.14(  An 
authenticated  copy  of  the  will  and  probate  thereof,  to- 
gether with  a  petition  for  the  probate  of  the  same,  may 
be  filed  in  the  county  court  by  the  executor  or  other 
person  interested  in  the  estate.  The  court  thereupon 
appoints  a  time  and  place  of  hearing  and  notice 
thereof  is  given  in  the  same  manner  as  in  cases  of  wills 
executed  in  the  state  by  a  resident  thereof.141 

The  petition  should  allege  that  the  decedent  died 
seised  or  possessed  of  property  within  the  county  in 
which  it  is  filed,  should  show  the  interest  of  the  peti- 
tioner in  the  estate,  and  have  attached  to  the  same  an 
authenticated  copy  of  the  will  and  probate  thereof. 
The  foreign  statute  need  not  be  alleged.142  The  proof 
and  allowance  of  the  will,  duly  authenticated,  will  be 
presumed  to  be  in  accordance  with  the  laws  of  the 
foreign  state,  and  if  the  court  finds  that  the  instru- 
ment ought  to  be  allowed  as  the  last  will  and  testa- 
ment of  the  deceased,  the  copy  shall  be  filed  and 
recorded,  and  the  will  have  the  same  force  and  effect 
as  if  it  had  been  originally  proved  and  allowed  in  the 
same  court.143  Decrees  of  foreign  courts  admitting 
wills  to  probate  without  the  authenticated  copy  of 
the  foreign  probate  of  the  same  being  filed,  and  which 

140  Eev.  Stats.,  c.  17,  §  43,  [1307]. 

i«  Eev.  Stats.,  c.  17,  §  44,  [1308] ;  Fremont,  E.  &  M.  V.  E.  Co.  v. 
Setright,  34  Neb.  253,  51  N.  W.  833. 

142  Martin  v.  Martin,  70  Neb.  207,  97  N.  W.  289;  Koopman  v.  Car- 
roll, 50  Neb.  284,  70  N.  W.  395. 

143  Eev.  Stats.,  c.  17,  §  46,    [1310]  ;   Martin  v.   Martin,  70  Neb.   207, 
97  N.  W.  289;  F.  E.  &  M.  V.  E.  Co.  v.  Setright,  34  Neb.  253,  51  N.  W. 
883. 

(152)' 


Chap.  8]  PROBATE    OF    WILLS.  §  101 

were  made  previous  to  March  5,  1885,  are  made  legal 
and  valid  by  chapter  48,  Session  Laws  of  1885. 

In  Oregon,  a  foreign  will  conveying  either  real  or 
personal  estate,  if  previously  regularly  admitted  to 
probate  in  the  state  where  executed,  need  not  be  pro- 
bated in  Oregon.  Copies  of  the  same  with  the  probate 
thereof,  certified  by  the  clerk  of  the  court  in  which 
such  will  was  probated,  with  the  seal  of  the  court 
affixed  thereto,  if  there  be  a  seal,  together  with  a  cer- 
tificate of  the  chief  judge  or  presiding  magistrate  that 
the  certificate  is  in  due  form  and  made  by  the  clerk 
or  other  person  having  legal  custody  of  the  record, 
shall  be  recorded  in  the  same  manner  as  wills  executed 
and  proved  in  Oregon,  and  admitted  in  evidence  in 
the  same  manner  and  with  like  effect. 

Where  such  will  has  been  filed  or  recorded  in  any 
other  state  or  territory  of  the  United  States  or  foreign 
country  without  probate  thereof,  and  probate  is  not 
required  by  the  law  of  the  place  where  the  same  is 
filed  or  recorded,  a  certified  copy  of  the  will  may  be 
filed  in  the  county  court  of  competent  jurisdiction  in 
Oregon,  and  the  testimony  of  the  subscribing  witnesses 
taken  upon  deposition  issued  as  in  other  cases  for 
taking  testimony  of  witnesses  outside  the  jurisdiction 
of  the  court.  In  such  cases  the  court  shall  designate 
the  commission  before  whom  the  testimony  shall  be 
taken,  and  if  it  shall  appear  that  the  will  was  executed 
according  to  the  laws  of  the  state  of  Oregon,  and  that 
the  testator  was  competent  to  execute  the  same,  such 
certified  copy  of  the  will  and  testimony  of  the  wit- 
nesses shall  be  recorded  in  the  same  manner  and  with 
like  effect  as  wills  executed  and  proven  in  Oregon.144 

Any  such  will  may  be  contested  and  annulled  within 
the  same  time  and  in  the  same  manner  as  wills  executed 
and  proven  in  Oregon.145 

»4  L.  O.  L.,  §  7333. 
145  L.  0.  L.,  §  7334. 

(153) 


§  102  PROBATE   AND   ADMINISTRATION.  [Chap.  8 

Form  No.  27. 
PETITION  FOB  PROBATE  OF  FOREIGN  WILL. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  said  court  that 

A.  B.,  late  of  the  county  of and  state  of  ,  departed  this 

life  at  the  city  of ,  in  said  county  and  state  last  aforesaid,  leav- 
ing a  last  will  and  testament,  which  said  will  relates  to  both  real 
and  personal  property,  and  a  portion  of  said  real  estate,  to  wit, 

[describe  real  estate],  is  located  in  said county,  Nebraska;  that 

on  the day  of  ,  19 — ,  said  will  was  admitted  to  probate 

in  the court  of  the  said  county  of ,  and  state  of  , 

a  copy  of  which  said  will  and  the  probate  thereof,  duly  authenticated, 
is  hereto  attached  marked  "Ex.  A,"  and  made  a  part  of  this  petition; 
that  your  petitioner  is  interested  in  said  will  as  a  devisee  [legatee, 
executor  thereof] ;  and  that  said  decedent  left  him  surviving  [state 
names  of  widow  and  heirs  as  in  original  petition  for  probate]. 

Your  petitioner  therefore  prays  that  said  court  will  appoint  a  time 
and  place  for  hearing  on  said  will,  that  notice  in  due  form  issue  and 
be  given  to  all  persons  interested  in  said  estate  to  appear  and  attend 
the  probate  of  said  will,  and  for  such  other  proceedings  necessary 
to  admit  the  same  to  probate,  and  that  letters  of  administration,  with 
the  will  annexed,  issue  to  said  petitioner. 

Dated  this day  of ,  19 — . 

C.  D. 

[Add  verification,  Form  No.  5.] 

§  102.    Probate  of  nuncupative  wills. 

Nuncupative  wills  must  be  probated  the  same  as 
other  wills.  They  are  creatures  of  the  statutes,  and 
not  favored  by  the  law.  If  possible,  all  the  witnesses 
to  them  should  testify  on  the  hearing  in  regard  to  the 
condition  of  the  testator  and  the  circumstances  sur- 
rounding the  speaking  of  the  testamentary  words.146 
Special  opportunities  exist  for  the  exercise  of  fraud 
and  undue  influence  on  account  of  the  weak  physical 
condition  of  the  testator,  and,  though  the  burden  of 

146  Godfrey  T.  Smith,  73  Neb.  756. 
(154) 


Chap.  8]  PROBATE  OF  WILLS.  §  103 

proof  is  the  same  as  in  other  will  hearings,  slight  cir- 
cumstances showing  that  the  volition  of  the  testator 
was  overcome  would  place  the  burden  of  proof  on  the 
proponent. 

§  103.  Probate  of  wills  executed  outside  the  state  by 
a  resident  thereof. 

The  Michigan  supreme  court  in  an  early  case  147  con- 
strued their  probate  statute,  which  the  Nebraska  ter- 
ritorial legislature  adopted  about  ten  years  later,  as 
permitting  any  instrument  executed  without  the  state 
by  a  resident  thereof,  which  at  common  law  was  a  last 
will  and  testament,  to  be  admitted  to  probate  in  that 
state.  Therefore,  under  a  strict  application  of  the 
rule  of  construction  of  statutes  adopted  from  another 
state,  an  instrument,  testamentary  in  character,  signed 
by  the  testator,  attested  or  unattested  by  witnesses,  if 
executed  outside  the  state  by  a  resident  of  this  state, 
may  be  probated. 

The  Michigan  case  appears  to  be  contrary  to  the 
great  weight  of  authority  that  at  common  law  a  will, 
in  order  to  be  effectual  to  convey  personal  property, 
must  be  executed  according  to  the  law  of  testator's 
domicile,  at  the  time  of  his  death,148  and  to  pass  the 
title  to  real  estate,  according  to  the  law  of  the  juris- 
diction where  it  is  situated.149 

147  In  re  High.  2  Doug.   (Mich.)  517. 

148  Wood  v.  Wood,  5  Paige  (N.  Y.),  596. 

149  Matter  of  Stewart,  11  Paige   (N.  Y.),  398.     The  will  declared 
«ntitled   to   probate   was   a  holographic   instrument   unwitnessed   and 
unattested,  and  not  executed  in  compliance  with  any  law  of  the  state 
of   Michigan.     The   case  is   a  bad   precedent,   and  if  the   question   is 
clearly  raised  in  this  state  it  will  probably  be  not  followed. 

(155) 


§  104  PKOBATE    AND   ADMINISTRATION.  [Chap.  8 

§  104.    Costs  in  will  contests. 

Costs  in  will  contests  are  awarded  in  the  discretion 
of  the  court.150 

Under  this  rule  a  person  nominated  as  executor  is 
ordinarily  entitled  to  reasonable  attorney  fees  incurred 
in  procuring  its  probate,151  and  in  cases  where  the  will 
was  not  sustained  the  award  of  costs,  including  attor- 
ney fees,  should  depend  largely  on  the  nature  and 
character  of  the  objections.152 

Such  rule,  however,  it  has  been  held,  will  not  war- 
rant the  court,  solely  on  the  ground  of  good  faith,  in 
awarding  such  costs  and  fees  to  an  unsuccessful  con- 
testant.153 A  successful  contestant  is  entitled  to  costs, 
and  the  court  might  be  justified  in  awarding  him  his 
reasonable  attorney  fees. 

Such  fees  paid  by  a  legatee  or  devisee  in  securing 
the  probate  of  a  will  are  not  a  proper  charge  against 
the  estate,  whether  the  will  was  proved  or  not.154 

Attorney  fees  which  are  properly  chargeable  in  a 
will  contest  are  a  part  of  the  costs  of  administration, 
and  may  be  allowed  on  the  final  account.155 

150  Wallace  v.  Sheldon,  56  Neb.  55,  76  N.  W.  418;  In  re  Clapham's 
Estate,  73  Neb.  492,  103  N.  W.  61. 

151  In  re  Hentges'  Estate,  86  Neb.  75,  124  N.  W.  929;  In  re  Bow- 
man's Estate,  133  Wis.  494,  113  N.  W.  956. 

152  Page  v.  Williamson,  87  L.  T.,  N.  S.,  146;  Lassiter  v.  Travis,  98 
Tenn.  330,  39  S.  W.  226;  Dodd  v.  Anderson,  197  N.  Y.  466,  90  N.  E. 
1137;  In  re  Blair,  59  N.  Y.  Supp.  1090;  Gardner  v.  Moss,  123  Ky.  334, 
96  S.  W.  461. 

153  Wallace  v.  Sheldon,  56  Neb.  55,  76  N.  W.  418;  overruling  Mathis 
v.  Putnam,  32  Neb.  191,  49  N.  W.  182,  and  Seebrock  v.  Fedawa,  33 
Neb.  413,  50  N.  W.  270. 

154  Atkinson  v.  Mays,  57  Neb.  137,  77  N.  W.  343;  St.  James'  Orphan 
Asylum  v.  McDonald,  76  Neb.  630,  107  N.  W.  979,  110  N.  W.  626. 

155  Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843. 

(156) 


Chap.  8]  PROBATE  OF  WILLS.  §§105,106 

§  105.    Reducing  testimony  to  writing. 

There  is  nothing  in  the  statute  requiring  the  testi- 
mony taken  on  the  hearing  for  the  probate  of  a  will 
to  be  reduced  to  writing  and  filed,  or  filed  and  recorded. 
In  some  counties  this  practice,  which  is  probably  a 
survival  of  the  old  common-law  "proof  of  will  in 
common  form,"  prevails,  though  wills  could  never  be 
proved  in  common  form  in  this  state.  It  is  entirely 
unnecessary. 

§  106.    Order  admitting  will  to  probate. 

If  the  court  finds  that  the  allegations  of  the  peti- 
tion are  sustained  and  that  the  instrument  is  the  last 
will  and  testament  of  the  testator,  an  order  should  be 
made  and  entered  admitting  it  to  probate.  Though 
jurisdictional,  the  courts  adopt  a  very  liberal  view  as 
to  what  it  should  contain.  A  recital  that  it  appeared 
from  the  testimony  that  the  instrument  was  the  last 
will  and  testament  of  the  testator,  that  he  was  com- 
petent, setting  out  a  copy  of  the  will  and  directing 
that  it  be  admitted  to  probate,  has  been  held  sufficient 
in  a  collateral  proceeding.156  It  need  not  be  signed  by 
the  judge.157 

If  probate  is  refused,  an  order  for  that  purpose 
should  be  entered.  If  no  appeal  be  taken  within  thirty 
days  from  the  date  of  the  order,  it  is  conclusive,  and 
if  the  record  shows  that  the  petition  is  in  proper  form, 
presented  to  a  court  having  jurisdiction,  and  that  all 
the  statutory  steps  have  been  complied  with,  it  cannot 

156  Kirk  v.  Bowling,  20  Neb.  260,  29  N.  W.  931. 

157  Beer  v.  Plant,  1  Xeb.  Unof.  372,  96  N.  W.  348. 

(157) 


§  106  PROBATE    AND   ADMINISTRATION.  [Chap.  8 

be  attacked  in  a  collateral  proceeding,158  even  though 
proceedings  to  contest  it  are  pending  at  the  time.159 

Form  No.  28. 

ORDER  ADMITTING  WILL  TO  PROBATE  AND  FOR  LETTERS 
TESTAMENTARY. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  C.  D.  for  the  probate  of  the  will  of  A.  B., 
deceased,  and  for  the  issue  of  letters  testamentary  thereon  to  him, 
the  said  C.  D.  C.  D.  appeared  in  person  and  by  J.  F.  R.,  his  attorney 
[state  appearances  by  other  parties,  if  any]. 

It  appearing  to  the  court  from  the  proof  on  file  that  notice  of  the 
pendency  of  this  petition  has  been  given  to  all  parties  interested  in 
said  estate  as  by  order  of  said  court  heretofore  made  and  entered;* 
whereupon  E.  F.  and  G.  H.,  subscribing  witnesses  to  said  instrument, 
were  sworn  and  testified  [if  but  one  witness  is  called  so  state;  give 
names  of  all  witnesses  called]. 

On  consideration  whereof  the  court  finds  that  said  A.  B.  died  —  — , 
19 — ;  that  he  was  immediately  preceding  his  death  a  resident  of  said 
county;*  that  said  will  was  duly  executed  as  required  by  law,  that 
said  A.  B.  at  the  time  of  making  said  will  was  of  sound  mind  and 
memory,  not  under  any  restraint  or  undue  influence,  and  in  all  re- 
spects competent  to  devise  real  and  personal  estate;  that  said  will  has 
been  duly  proven,  and  should  be  allowed  as  and  for  the  last  will  and 
testament  of  said  A.  B. 

It  is  therefore  considered  by  the  court  that  said  last  will  and  testa- 
ment was  duly  executed,  that  the  same  is  genuine  and  valid,  and  that 
said  last  will  and  testament  be  admitted  to  probate,*  and  established 
as  a  will  and  testament  of  real  and  personal  estate;  and  it  is  further 
ordered  that  letters  testamentary  issue  thereon  to  said  C.  D.  upon 

his  giving  bond  in  the  sum  of  $ ,  and  taking  the  oath  required 

by  law. 

(Signed)     J.  K., 
County  Judge. 

158  Loosemore  v.  Smith,  12  Neb.  345,  11  N.  W.  493;  Kirk  v.  Bowling, 
20  Neb.  260,  29  N.  W.  931;  Byron  Reed  Co.  v.  Klabunde,  76  Neb.  801, 
108  N.  W.  133;  Kolterman  v.  Chilvers,  82  Neb.  216,  117  N.  W.  405. 

159  Brown  v.  Burdick,  25  Ohio,  260. 

(158) 


Chap.  8]  PBOBATE  OP  WILLS.  §  106 

Form  No.  28a — Oregon. 

ORDER  ADMITTING  WILL  TO  PROBATE. 
[Title  of  Cause  and  Court.] 

At  a  session  of  said  court  held  at  the  county  court  room  in  said 

county  on    the  day    of  ,  19 — ,  Present,    the    Honorable 

J.  K.,  County  Judge.     It  appearing  from  the   petition,  duly  verified, 

of  C.  D.  on  file  therein  that  one  A.  B.  departed  this  life  on  the 

day  of  ,  19 — ,  that  he  was  immediately  preceding  his  death  an 

inhabitant   of  said   count}-,   that  he  left  an  estate  therein  consisting 

of  real  estate  of  the  estimated  value  of  $ and  personal  property 

of  the  estimated  value   of  $ ,  and  the  following  heirs  at  law: 

C.  B.,  of  lawful  age,  residence, etc.;  whereupon  E.  F.  and  G.  H., 

subscribing  witnesses   to   said   instrument,   were   sworn    and   testified. 
Said  testimony  was  reduced  to  writing  and  filed  in  said  court. 

[Balance  as  in  Form  No.  28.] 

Form  No.  29. 

ORDER  ADMITTING  FOREIGN  WILL  TO  PROBATE. 
[Follow  Form  No.  28  to  *,  then:] 
Whereupon  C.  D.  was  sworn  and  testified. 
It  appearing  to  the  court  from  a  copy  of  said  will  and  the  probate 

thereof,    duly    authenticated    by    the  of  the  court  of 

,  state  of ,  that  said  will  has  been  duly  admitted  to  pro- 
bate in  said  court  of  said  ,  state  of  ,  that  said 

A.  B.  died  seised  of  real  estate  in  said  county,  Nebraska,  and 

that  said  instrument  ought  to  be  allowed  as  the  last  will  and  testa- 
ment of  the  said  A.  B.: 

It  is  therefore  considered  by  the  court  that  said  authenticated  copy 
of  said  will  of  said  A.  B.  be  allowed  and  admitted  to  probate  within 
the  court  and  given  the  same  force  and  effect  as  if  originally  pro- 
bated in  said  county  court  of  said  county;  and  it  is  further 

ordered  that  letters  testamentary  issue  to  said  C.  D.  upon  his  giving 

bond  in  the  sum  of  $ ,  and  taking  the  oath  required  by  law. 

(Signed)     J.   K., 
County  Judge. 

(159) 


§  107  PBOBATE   AND   ADMINISTRATION.  [Chap.  8 

Form  No.  30. 

ORDER  REFUSING  PROBATE  OF  WILL. 
[Follow  Form  No.  28  to  *,  then:] 

On  consideration  whereof  the  court  finds  that  said  instrument  is 
not  the  last  will  and  testament  of  said  A.  B. 

It  is  therefore  considered  and  adjudged  by  the  court  that  said  in- 
strument be  refused  probate,  and  it  is  further  ordered  that  the  costs 

of  this  proceeding,  taxed  at  $ ,  be  a  charge  against  the  estate 

of  said  A.  B. 

(Signed)     J.  K., 
County  Judge. 

§  107.    Certificate  of  probate  of  will. 

If  the  court  admits  the  will  to  probate,  a  certificate 
of  such  fact  is  required  to  be  indorsed  thereon  or  an- 
nexed thereto,  signed  by  the  county  judge  and  attested 
by  the  seal  of  the  court.160  The  certificate  is  not  a  part 
of  the  probate,  but  simply  evidence  that  the  will  has 
been  probated,  and,  when  so  certified,  a  transcript 
thereof  is  entitled  to  record  in  the  office  of  the  register 
of  deeds,  and  is  competent  evidence  in  all  courts.163 
In  the  latter  case  it  was  held  that  where  the  judge 
neglected  to  attach  his  certificate,  a  certified  copy  of 
the  records  and  files  of  the  court  could  be  used  to  show 
that  the  will  had  been  actually  probated. 

Form  No.  31. 
CERTIFICATE   OF  PROBATE  OF   WILL. 

State  of  Nebraska, 

County, — ss. 

I,  J.  K.,  judge  of  the  county  court  of  said  county,  do  hereby  certify 
that  the  foregoing  instrument  was  filed  in  this  office  on  the  

160  Rev.  Stats.,  c.  17,  §59,  [1323]. 

161  Rev.  Stats.,  c.  17,  §60,   [1324];  Roberts  v.  Flannagan,  21  Neb. 
509,  32  N.  W.  563;  Kolterman  v.  Chilvers,  82  Neb.  216,  117  N.  W.  405. 

(160): 


Chap.  8]  PROBATE  OF  WILLS.  §  107 

day  of  ,  19 — ,  together  with  the  petition  for  probate  of  the 

same;   that  notice  of    the    pendency  of  said    petition  was    given  by 

publication  of  the  same  for  three  weeks  in  the  ,  a  newspaper 

printed    and    published    in    said    county;   that  on    the  day  of 

,   19 — ,  the  execution   of  said  will  was   duly   proven,  and   also 

that  the  said  testator,  at  the  time  of  its  execution,  was  of  full  age 
and  of  sound  mind;  that  an  order  of  said  court  was  thereupon  entered 
admitting  said  instrument  to  probate  as  and  for  the  last  will  and  tes- 
tament of  said  A.  B.,  and  that  letters  testamentary  thereupon  issued 
to  C.  D.,  the  executor  therein  named. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed  the 
seal  of  said  court  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 
11— Pro.  Ad.  (161) 


CHAPTER  IX. 

REVOCATION  OF  PROBATE. 

8  108.  Eevocation  of  Probate — Definition. 

109.  Grounds  for  Revoking  Probate  of  Will. 

110.  Power  of  County  Court  to  Eevoke  Probate  of  Wills. 

111.  Procedure   for    Revoking   Probate. 

112.  Facts   Necessary   to   be    Established. 

113.  Effect  of  Order  of  Revocation. 

114.  Revocation  Because   Testator  is  Living. 

§  108.    Revocation  of  probate — Definition. 

Revocation  of  probate  may  be  defined  as  the  recall- 
ing or  canceling  of  the  probate  of  the  will  by  a  court 
of  competent  authority  for  sufficient  cause  shown.  It 
is  the  reopening  of  the  order  or  decree  by  which  the 
will  was  established,  thus  giving  the  parties  in  interest 
an  opportunity  to  come  in  and  prove  the  facts  which 
would  invalidate  the  instrument,  the  same  as  on  an 
original  hearing,  unless  the  ground  of  revocation  is  one 
that  of  itself  precludes  the  fact  of  the  instrument  being 
a  will.1 

§  109.    Grounds  for  revoking  probate  of  a  will. 

Probate  of  a  will  may  be  revoked  for  the  following 
causes:  1.  Fraud,  mistake,  collusion  or  conspiracy;2 
2.  Failure  to  execute  the  will  according  to  law ; 3  3. 
Failure  to  give  legal  notice;4  4.  Disqualification  of  the 

1  Waters  v.  Stickney,  12  Allen  (Mass.),  1. 

a  Miller  r.  Miller's  Estate,  69  Neb.  441,  95  N.  W.  1010;  In  re  Paige, 
62  Barb.  (N.  Y.)  476;  Gaines  v.  Chew,  2  How.  (U.  S.)  641;  Brown  v. 
Mitchel,  75  Tex.  9,  12  S.  W.  606. 

3  Sowell  v.  Sowell's  Admr.,  40  Ala.  243. 

*  O'Dell  v.  Rogers,  44  Wis.  136;  Randolph  v.  Hughes,  89  N.  C.  428. 

(162) 


.  9]        REVOCATION  OF  PROBATE.  §  110 

county  judge; 5  5.  For  the  reason  that  the  alleged  tes- 
tator is  living.8 

§  110.    Power  of  county  court  to  revoke  probate  de- 
crees. 

The  county  court  has  power  under  the  statutes  to 
vacate  or  modify  a  final  order  after  the  term  at  which 
it  was  entered  for  mistake,  neglect  or  omission  of 
the  clerk  or  irregularity  in  obtaining  the  order,  and 
for  fraud  practiced  by  the  successful  party.7 

Such  court  also  has  exclusive  original  jurisdiction, 
in  the  same  manner  as  a  court  of  general  equity  juris- 
diction, to  revoke  the  probate  of  a  will  for  any  of  the 
causes  mentioned  in  the  above  section.8  The  validity 
of  the  decree  cannot  be  attacked  in  any  other  court,9 
excepting  on  grounds  which  would  render  any  decree 
subject  to  collateral  attack.10 

Under  the  Oregon  practice  the  statutory  provisions 
for  the  contest  of  a  will  which  has  been  admitted  to 
probate  in  common  form  are,  to  a  certain  extent,  a 
substitute  for  the  proceedings  under  the  Nebraska 
practice  for  revocation  of  its  probate.  Such  provi- 
sions do  not,  however,  in  all  cases,  afford  a  party  an 
adequate  remedy.  The  rule  is  that  whenever  a  lawful 
and  sufficient  cause  exists  for  revoking  a  decree  admit- 
ting a  will  to  probate,  a  party  injured  thereby,  who  is 
not  estopped  by  his  own  acts  or  guilty  of  laches,  may 

6  Sigourney  v.  Sibley,  21  Pick.  (Mass.)  101. 
«  Morgan  v.  Dodge,  44  N.  H.  259. 

7  Civ.  Code,  §§  648,  656. 

8  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  451. 

8  Loosemore  v.  Smith,  12  Neb.  343,  11  N.  W.  493. 
10  Section  106,  supra. 

(163) 


§  111  PBOBATE    AND   ADMINISTRATION.  [Chap.  9 

maintain  an  action  for  that  purpose,11  and  that  where 
the  powers  of  a  probate  court  are  complete  and  exclu- 
sive, and  not  limited  by  statute,  but  are  as  complete 
over  the  matters  within  the  jurisdiction  conferred  on 
it  by  the  constitution  -and  the  legislature  as  of  a  court 
of  general  jurisdiction,  it  has  inherent  power  to  vacate 
such  decree.12 

The  Oregon  county  court  does  not  possess  general 
equity  powers  over  matters  within  its  exclusive  juris- 
diction.13 Power  to  revoke  the  probate  of  a  will,  in 
any  other  manner  than  by  a  contest,  is  nowhere  given 
it  by  statute,  nor  does  it  appear,  as  far  as  the  records 
of  the  supreme  court  are  concerned,  that  it  was  a  power 
ever  exercised  by  the  probate  court  previous  to  the 
adoption  of  the  constitution.  The  circuit  court  has 
been  held  to  possess  jurisdiction  of  an  action  to  set 
aside  the  final  account  of  a  representative  for  fraud,14 
and  though  the  question  is  not  entirely  free  from  doubt, 
it  would  seem  that  the  power  to  vacate  the  decree  ad- 
mitting a  will  to  probate  after  the  expiration  of  the 
time  for  a  contest  was  in  the  circuit  court. 

§  111.    Proceedings  for  revoking  probate. 

The  proceeding  under  the  code  for  revoking  the  pro- 
bate of  a  will  must  be  commenced  within  two  years 
from  the  date  of  the  order,  unless  the  party  be  an 
infant  or  person  of  unsound  mind,  and  then  within 
two  years  after  the  removal  of  such  disability.15  It 
is  begun  by  the  filing  of  a  verified  petition  setting  out 

11  Boyse  v.  Eossborough,  52  Eng.  Ch.  646;  Tudor  v.  James,  53  Ga. 
302;  Anderson  v.  Anderson,  112  N.  Y.  104,  19  N.  E.  427. 

12  In  re  Hause,  32  Minn.  157,  19  N.  W.  973;  Langdon  v.  Blackburn, 
109  Cal.  19,  41  Pac.  814;  Protestant  Episcopal  Church  v.  Eells,  68  Vt. 
497,  35  Atl.  463;  Vincent  v.  Vincent,  70  N.  J.  Eq.  272,  62  Atl.  700. 

13  Section  10,  supra. 

14  Froebich  v.  Lane,  45  Or.  13,  76  Pac.  351. 
W  Civ.  Code,  §  655. 

(164) 


Chap.  9]  REVOCATION  OF  PROBATE.  §  111 

the  entry  of  the  order  and  the  grounds  to  vacate  it, 
and  issue  of  summons  as  in  other  cases.16  The  peti- 
tion must  set  out  in  full  the  grounds  upon  which  the 
petitioner  relies  for  defeating  the  probate  of  the  will ; 
in  the  case  of  fraud  in  procuring  the  will,  mental  in- 
capacity or  undue  influence,  the  facts  pertaining  to  the 
same  must  be  alleged,  and  it  must  also  appear  that  the 
petitioner  had  no  notice  of  the  proceedings  or  notice 
of  facts  sufficient  to  put  him  on  inquiry  in  regard  to 
the  death  of  the  testator,  his  estate,  the  existence  of 
a  will  or  proceedings  for  its  probate.  A  petitioner 
under  the  code  must  act  as  soon  as  he  has  sufficient 
knowledge  to  put  himself  on  inquiry." 

The  action  to  set  aside  the  probate  of  a  will  is  a  suit 
in  equity  for  the  purpose  of  obtaining  purely  equitable 
relief.  The  right  to  maintain  it  does  not  depend  on 
any  statute,  but  on  the  general  principle  of  granting 
relief  where  the  common  law  and  the  statutes  afford 
no  remedy.18  It  may  be  brought  by  the  heirs  of  the 
decedent,  or  the  executor,  legatee  or  devisee  under  an 
alleged  subsequent  will.  A  person  who  has  with 
knowledge  of  fraud  or  irregularities  in  the  matter  of 
its  probate  received  and  retained  a  beneficial  interest 
under  the  will  then  in  force  is  not  entitled  to  bring 
the  action.19 

The  executor  of  the  will  which  has  been  probated  is 
a  necessary  defendant,  and  the  devisees  and  legatees 
thereunder  must  be  made  parties.20 

16  Civ.  Code,  §  655. 

17  Miller  v.  Miller's  Estate,  69  Neb.  441,  95  N.  W.  1010. 

18  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  451. 

19  Hyde  v.  Baldwin,   7  Pick.    (Mass.)    303;   Leeks  v.  Patten,  18  Me. 
42;  S-mth  v.  Guild,  34  Me.  448. 

20  Williams  v.  Miles,  63  Neb.  859,  89  X.  W.  451. 

(165) 


§  111  PROBATE    AND   ADMINISTRATION.  [Chap.  9 

The  petition  is  in  the  nature  of  a  bill  in  equity  to  set 
aside  a  decree,21  but  broader  in  its  scope.  If  it  is 
claimed  that  the  will  has  been  superseded  by  another 
instrument,  it  is  proper  to  include  an  application  for 
its  probate.22 

Form  No.  32. 
PETITION  FOB  REVOCATION  OF  PROBATE  OF  A  WILL. 

In  the  County  Court  of County,  Nebraska. 

B.  F., 

Plaintiff, 
V. 

C.  D.,  Executor  of  the  Estate  of  A.  B., 

Deceased,  G.  H.  and  L.  M., 

Defendants. 

Comes  now  said  plaintiff  and  for  cause  of  action  against  said  de- 
fendants avers  that  one  A.  B.,  late  a  resident  of  said  county,  departed 

this  life   at  the   city   of  ,  in   said   county,   on  the  -         -  day 

of ,  19— ;   that  on  the  day  of ,  19 — ,  one  C.  D 

presented  to  said  court  an  instrument  purporting  to  be  the  last  will 
and  testament  of  said  deceased,  and  on  the  same  date  filed  a  petition 
for  his  appointment  as  executor  of  said  estate,  and  the  -  -  day  of 

,  19 — ,  was  fixed  by  said  court  for  the  hearing  on  said  petition; 

that  notice  of  said  hearing  was  given  by  publication  in  the  ,  a 

newspaper  printed   and   published  at   and   within   the   county   aforesaid, 

the  first  publication  being  on  the  -        -  day  of  ,  19 — ,  and  the 

last   one   the  day  of  ,   19 — ,  and   no   personal   service   of 

notice  of  said  hearing  was  had  on  your  petitioner;  that  on  said 

day  of ,  19 — ,  a  decree  was  entered  by  said  court  admitting  said 

instrument  to  probate  as  and  for  the  last  will  and  testament  of  said 
A.  B.,  deceased;  that  said  C.  D.  thereupon  gave  a  bond  in  due  form, 
which  was  approved  by  said  court,  and  letters  testamentary  were 
issued  to  him  as  executor  of  the  estate  of  said  A.  B.,  and  said  C.  D. 
is  now  the  duly  qualified  and  acting  executor  of  said  estate,  and  G.  H. 
and  L.  M.  sole  beneficiaries  under  said  instrument. 

21  Ryno's  Exr.  v.  Ryno's  Admr.,  27  N.  J.  Eq.  522 ;  Hotchkiss  v.  Ladd's 
Estate,  62  Vt.  209 ;  Franks  v.  Chapman,  61  Tex.  576. 

22  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  451. 

(166) 


Chap.  9]  REVOCATION    OF    PROBATE.  §  111 

Second.  That  said  A.  B.  died  seised  of  the  following  described  real 
estate  situated  in  said  county:  ,  and  possessed  of  personal  prop- 
erty therein  of  the  value  of,  to  wit,  $  •  ,  the  exact  nature  of  which 
is  unknown  to  said  plaintiff. 

Third.  That  said  plaintiff  is  a  brother  of  said  A.  B.,  and  his  sole 
heir  at  law;  that  he  is  not  a  beneficiary  under  said  will,  and  has  re- 
ceived no  beneficial  interest  thereunder,  or  any  property  of  any  kind 
or  description  from  said  estate. 

Fourth.  That  said  plaintiff  is  a  resident  of  the  city  of  

and  state  of  ,  and  has  resided  in  said  city  for  the  period 

of  seventy  years  last  past,  and  his  place  of  residence  was  well  known 
to  said  C.  D. ;  that  he  had  no  knowledge  of  the  death  of  said  A.  B., 
or  of  the  existence  of  any  last  will  and  testament  of  said  A.  B.,  or 
of  the  filing  of  any  petition  for  the  probate  of  said  will,  or  of  the 
date  fixed  by  the  court  for  the  hearing  on  said  will,  or  of  any  pro- 
ceedings whatever  in  regard  to  said  estate  before  the  day  of 

,  19 — ,  and  on  said  day  last  aforesaid  he  received  through  the 

mails  a  copy  of  said  ,  and  which  said  paper  contained  a  notice 

of  the  hearing  on  the  probate  of  said  will. 

Fifth.  That  on  the  day  said  will  purports  to  have  been  executed, 
and  for  a  long  time  prior  thereto,  said  A.  B.  was  in  feeble  health; 
that  his  eyesight  was  impaired,  so  that  he  was  wholly  unable  to  read, 
and  was  seventy-nine  years  of  age;  that  said  C.  D.  had  been  for 
more  than  ten  years  last  past  the  bookkeeper  and  confidential  agent 
of  said  A.  B.,  and  was  intrusted  by  him  with  the  management,  con- 
trol, and  investment  of  the  property  of  said  A.  B.,  and  said  A.  B. 
had  entire  confidence  in  the  honor  and  integrity  of  the  said  C.  D.; 

that  on  or  about  the  day  of  ,  19 — ,  said  A.  B.,  while 

sick  and  unable  to  leave  his  room,  and  unable  to  read  on  account  of 
impaired  eyesight,  dictated  to  said  C.  D.  a  memorandum  or  direction 
as  to  what  disposition  he  wished  made  of  his  estate,  and  directed 
him,  said  C.  D.,  to  deliver  said  memorandum  to  one  R.  J.  S.,  an  at- 
torney, and  to  employ  said  attorney  for  him,  said  A.  B.,  to  draft  his 
will  according  to  said  directions;  that  said  R.  J.  S.  did  draft  an 
instrument  in  accordance  with  the  instructions  in  said  memorandum 
contained,  and  delivered  the  same  to  said  C.  D.;  that  said  C.  D.  fraudu- 
lently and  willfully  caused  to  be  prepared  the  instrument  probated 

in  this  court  on  the  day  of  ,  19 — ,  and  did  fraudulently 

obtain  the  signature  of  said  A.  B.  to  the  said  instrument  probated  in 
this  court  by  falsely  and  fraudulently  representing  to  him,  said  A.  B., 
that  the  instrument  so  executed  and  declared  by  him,  said  A.  B.,  was 
the  instrument  drafted  by  said  attorney,  and  which  said  instrument 

(167) 


§  112  PROBATE   AND   ADMINISTRATION.  [Chap.  9 

he,  said  C.  D.,  had  read  to  said  A.  B.,  and  that  said  instrument  pro- 
bated in  this  court  was  executed  by  said  A.  B.  solely  by  reason  of  the 
false  and  fraudulent  representations  so  made  as  aforesaid  by  said 
C.  D.,  and  was  not  intended  by  said  A.  B.  as  and  for  his  last  will  and 
testament,  and  is  not  his,  said  A.  B.'s,  last  will  and  testament. 

Sixth.  Plaintiff  therefore  prays  that  said  decree  admitting  said 
instrument  to  probate  be  opened,  that  the  letters  testamentary  issued 
to  said  C.  D.  be  revoked  and  annulled,  that  a  hearing  be  had  at  a 
date  to  be  fixed  by  the  court  upon  the  petition  for  the  probate  of  said 

instrument  filed  by  said  C.  D.  on  the  day  of  ,  19 — ,  and 

that  upon  said  hearing  said  instrument  be  adjudged  not  the  last  will 
and  testament  of  said  A.  B. 

Dated  this day  of ,  19 — . 

(Signed)     E.  F. 

[Add  verification,  Form  No.  5.] 

§  112.    Facts  necessary  to  be  established. 

On  the  trial  of  an  action  to  revoke  the  probate  of  a 
will,  or  on  the  hearing  on  the  proceeding  under  the 
code  to  revoke  the  decree,  the  questions  to  be  deter- 
mined are,  did  the  plaintiff,  or  petitioner,  know  or 
have  such  means  of  knowledge  as  would  put  a  reason- 
ably prudent  man  on  inquiry  of  the  existence  of  the 
will  and  of  the  pendency  of  proceedings  for  its  pro- 
bate, in  time  to  have  appeared  and  contested  it,23  or 
was  the  decree  obtained  by  fraud  or  the  intentional 
production  of  false  testimony,24  and  did  the  plaintiff 
or  petitioner  use  reasonable  diligence  in  bringing  the 
action  or  proceeding  after  he  obtained  knowledge  of 
the  fraud,  or  of  the  want  of  jurisdiction  of  the  court.25 

The  burden  of  proof  is  on  him,  but  he  is  not  required, 
as  in  the  case  of  a  contest,  to  show  that  the  instrument 

23  Miller  v.  Miller's  Estate,  69  Neb.  441,  95  N.  W.  1010. 

24  Miller  v.  Miller,  supra;  Secord  v.  Powers,  61  Neb.  615,  85  N.  W. 
846. 

25  Willms  v.  Plambeck,  76  Neb.  195,  107  N.  W.  248. 

(168) 


Chap.  9]  REVOCATION    OF    PEOBATB.  §  113 

is  not  the  last  will  of  the  testator.  He  must  show  facts 
sufficient  to  make  out  a  prima  facie  cause  of  contest, 
prejudicial  irregularities  which  were  sufficient  grounds 
for  refusing  it  probate.26 

Form  No.  33. 

DECREE  REVOKING  PROBATE. 
[Title  of  Cause  and  Court.] 

This  cause  came  on  for  hearing  on  the  petition  of  said  plaintiff 
(of  E.  F.,  an  heir  of  said  decedent)  for  the  revocation  of  the  decree 
admitting  the  will  of  said  decedent  A.  B.  to  probate,  the  answer  of 
said  defendant  (of  C.  D.,  executor),  and  was  submitted  to  the  court. 
On  consideration  whereof  the  court  finds  that  the  averments  of  said 
petition  are  sustained,  and  plaintiff  (said  petitioner)  has  prima  facie 
cause  for  the  contest  of  said  will  on  the  ground  of  fraud  of  said 
defendant  E.  F. 

It  is  therefore  adjudged  and  decreed,  that  the  said  order,  heretofore, 

to  wit,  ,  made  and  entered,  admitting  said  will  to  probate,  be 

and  the  same  hereby  is  revoked  and  the  letters  testamentary  issued  to 
said  C.  D.  on  said  date  be  and  the  same  hereby  are  revoked  and 
annulled.  It  is  further  ordered  that  a  hearing  be  had  on  the  petition 
of  said  defendant  C.  D.  for  the  probate  of  said  instrument  as  the  will 
of  said  A.  B.  on  the day  of ,  19 — . 

Dated  this day  of ,  19—. 

(Signed)     J.  K., 
County  Judge. 

§  113.    Effect  of  order  of  revocation. 

The  effect  of  an  order  opening  the  decree  admitting 
a  will  to  probate  is  to  place  the  estate  in  nearly  the 
same  condition  that  it  was  in  before  the  will  was  pro- 
bated, regard  being  had  to  the  rights  and  liabilities 
of  innocent  third  parties,  and  this  is  true  where  but 
one  of  the  parties  interested  in  the  estate  other  than 
the  administrator  appeared  in  court  on  the  hearing. 

26  Willms  v.  Plambeck,  supra. 

(169) 


§  114  PROBATE   AND   ADMINISTRATION.  [Chap.  9 

Probate  proceedings  cannot  be  set  aside  as  to  one  per- 
son and  held  good  as  to  another.27  It  terminates  the 
authority  of  the  executor,  but  all  acts  previously  done 
by  him  within  the  scope  of  his  employment  are  valid.28 
The  hearing  on  the  probate  of  the  will  should  be  held 
as  soon  as  practicable  after  it  is  opened,  for  during  the 
interim  there  is  no  person  authorized  to  attend  to  the 
business  of  the  estate.  Should  a  long  delay  occur  on 
account  of  taking  depositions  or  other  reason,  the  court 
would  no  doubt  have  authority  to  appoint  a  special 
administrator  to  collect  and  preserve  the  assets  of  the 
estate.  If  the  will  is  set  aside  on  the  rehearing,  an 
administrator  should,  of  course,  be  appointed  to  com- 
plete the  settlement  of  the  estate,  if  no  decree  of  dis- 
tribution has  been  made. 

§  114.    Revocation  because  testator  is  living. 

The  application  to  revoke  probate  proceedings  on 
account  of  the  alleged  testator  being  still  on  earth  may 
be  made  by  any  person  interested  in  the  estate.  As 
he  was  living  when  the  will  was  filed,  the  proceedings 
of  the  court  are,  of  course,  without  jurisdiction,  but, 
there  being  a  judicial  determination  that  he  was  dead, 
there  should  also  be  another  one  that  he  is  alive. 

27  In  re  Freud's  Estate,  73  Cal.  555,  15  Pac.  135. 

28  Gaines    v.    Hennen,    23    How.    (U.   S.)    553;    Bigelow's    Exrs.    v. 
Bigelow'B  Admrs.,  4  Ohio.  138. 

(170) 


CHAPTER  X. 

COLLECTION  AND  MANAGEMENT  OF  THE  ASSETS 
OF  THE  ESTATE  BEFORE  THE  APPOINTMENT 
OF  AN  EXECUTOR  OR  ADMINISTRATOR. 

§  115.  Special    Administrator — When    Appointed. 

116.  Jurisdiction   of   Court  to  Issue  Letters. 

117.  Evidence — Xotice. 

118.  Bond  of  Special  Administrator. 

119.  Powers  and  Duties  of  Special  Administrator. 

120.  Accounting  by   Special   Administrator. 

121.  Discharge  of  Special  Administrator. 

§  115.    Special  administrator — When  appointed. 

In  a  great  many  cases,  the  first  step  taken  in  the 
settlement  of  the  estates  of  deceased  persons  is  the  ap- 
pointment by  the  court  of  someone  to  take  charge  of 
and  collect  the  assets  and  look  after  the  welfare  of  the 
estate  until  an  executor  or  administrator  is  appointed. 
Such  an  official  is  termed  in  Nebraska  a  "special  ad- 
ministrator." As  the  statute  requires  notice  to  be 
given  of  the  hearing  on  the  petition  for  the  appoint- 
ment of  a  permanent  personal  representative,  from 
three  to  four  weeks  must  necessarily  elapse  before  he 
can  enter  upon  the  duties  of  his  trust.  When  an  ap- 
peal is  taken  from  decision  of  the  court  on  the  probate 
of  a  will,  the  delay  may  extend  over  a  period  of  months, 
and  perhaps  years.  If,  in  the  opinion  of  the  court,  the 
estate  comprises  property  of  such  a  nature  as  to  re- 
quire immediate  care  and  attention,  and  it  be  deemed 
for  the  best  interests  of  the  legatees,  devisees,  heirs  or 
next  of  kin  that  some  special  measures  be  taken  to  look 
after  and  collect  the  goods,  chattels,  credits  and  effects 
of  the  deceased,  it  could  appoint  a  person  for  that 

(171) 


§  116  PROBATE    AND   ADMINISTRATION.          [Chap.  10 

purpose.1  The  application  for  the  appointment  may 
be  made  when  the  petition  for  the  probate  of  the  will 
or  for  letters  of  administration  is  filed. 

§  116.    Jurisdiction  of  court  to  issue  letters. 

If  the  deceased  was  a  resident  of  Nebraska  at  the 
date  of  his  death,  the  county  court  of  the  county  in 
which  he  at  that  time  resided  has  exclusive  authority 
to  appoint  a  special  administrator.  If  the  decedent 
was  a  nonresident  of  this  state,  a  special  administrator 
may  be  appointed  in  any  county  of  the  state  in  which 
there  is  property  belonging  to  the  estate,  and  the  juris- 
diction of  the  special  administrator  first  appointed 
extends  to  all  the  property  of  the  deceased  within  the 
state.2  The  appointment  is  valid,  although  the  will  of 
the  decedent  was  subsequently  probated  in  another 
county.  The  application  should  be  by  petition  in  writ- 
ing, under  oath,  to  the  county  court.  It  may  be  made 
by  a  legatee,  devisee,  heir,  creditor  or  next  of  kin 
at  any  time  before  the  executor  or  administrator  re- 
ceives his  letters.  It  should  set  out  the  right  of  the 
petitioner  to  make  the  application,  state  the  nature  of 
the  estate,  and  the  necessity  of  the  appointment  of 
someone  to  collect  and  care  for  the  assets. 

Form  No.  34. 

PETITION  FOR  APPOINTMENT  OF  SPECIAL  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
he  is  [state  interest  of  petitioner  in  the  estate]  of  said  A.  B.,  and 

1  Rev.  Stats.,  c.  17,  §  77,  [1841];  Keegan's  Estate  v.  Welch,  83  Neb. 
166,  119  N.  W.  252;  L.  O.  L.,  §  1156. 

2  Cadman  v.  Richards,  13  Neb.  389,  14  N.  W.  159. 

(172) 


Chap.  10]  SPECIAL   ADMINISTRATION.  §  117 

as  such  legatee,   [etc.]  is  interested  in  said  estate;   that  on  the  

day  of  ,  19 — ,  one  E.  P.  filed  his  petition  in  said  court  for  the 

probate  of  the  instrument  purporting  to  be  the  last  will  and  testa- 
ment of  said  A.  B.;  that  said  court  thereupon  issued  an  order  for 
the  giving  of  notice  of  the  pendency  thereof  by  causing  the  same 
to  be  published  in  a  newspaper  of  said  county  for  the  period  of  three 
weeks,  and  that  by  reason  thereof  the  issue  of  letters  testamentary 
will  be  delayed  for  one  month  [if  delay  caused  by  objections  to 
the  probate  of  the  will  or  other  cause,  so  state];  that  said  A.  B. 
died  seised  of  the  following  described  real  estate  [describe  real  estate, 
give  condition  thereof,  and  state  reasons  why  it  is  necessary  some 
one  should  be  appointed  to  look  after  the  crops  or  income  therefrom], 
and  personal  property  consisting  of  [state  nature  of  personal  prop- 
erty, and  the  necessity  for  the  appointment  of  some  one  to  look  after 
it],  of  the  value  of  about dollars;  that  on  account  of  the  afore- 
said delay  in  the  issue  of  letters  testamentary  [of  administration] 
there  is  no  one  to  take  charge  of  said  estate,  and  there  is  cause  to 
believe  that  a  portion  of  said  personal  property  will  be  lost  or  become 
depreciated  in  value,  and  your  petitioner  and  others  interested  in 
said  estate  delayed  and  defrauded  of  their  just  rights  and  dues  unless 
some  one  is  appointed  to  take  charge  of  the  same. 

Your  petitioner  therefore  prays  that  special  letters  of  administra- 
tion may  issue  to  him  upon  said  estate,  giving  him  authority  to  collect 
and  care  for  the  same  until  the  issue  of  letters  testamentary  [of 
administration]. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

§  117.    Evidence — Notice. 

The  petition  should  be  supported  by  competent  evi- 
dence showing  the  condition  of  the  estate,  the  amount 
of  the  personalty,  and  the  necessity  of  having  someone 
appointed  to  take  charge  of  it  pending  the  appoint- 
ment of  an  executor  or  administrator.  No  notice  of  its 
pendency  is  required  by  the  statute,  and  none  need  be 
given.  The  appointment  rests  solely  in  the  discretion 

(173) 


§  118  PROBATE   AND   ADMINISTRATION.          [Chap.  10 

of  the  court,  and  there  is  no  appeal  from  his  decision 
thereon  to  any  higher  tribunal.3 

If  the  delay  is  not  caused  by  objections  to  the  pro- 
bate of  the  will  or  the  appointment  of  a  particular 
person  as  administrator,  the  administration  of  the 
estate  will  be  greatly  facilitated  and  the  expenses  of 
administration  lessened  by  the  appointment  of  the 
same  person  to  whom  general  letters  will  probably  be 
subsequently  issued. 

Under  the  Oregon  statute  the  bond  of  a  special  ad- 
ministrator is  in  the  same  form  as -that  of  one  acting 
under  regular  letters.4 

Form  No.  35. 

ORDER  FOR  APPOINTMENT  OF  SPECIAL  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

On  this day  of ,  19 — ,  this  cause  came  on  for  hearing 

upon  the  petition,  duly  verified,  of  C.  D.,  for  his  appointment  as  special 
•administrator  of  the  estate  of  A.  B.,  deceased,  and  upon  the  evidence. 
Upon  consideration  whereof  the  court  finds  that  it  is  necessary 
that  a  special  administrator  should  be  appointed  for  the  purpose  of 
collecting  and  taking  care  of  the  assets  of  said  estate  until  an  executor 
is  appointed. 

It  is  therefore  ordered  that  letters  of  special  administration  upon 
the  estate  of  the  said  A.  B.  issue  to  the  said  C.  D.  upon  his  filing  in 

this  court  a  bond  in  the  penal  sum  of  $ ,  with  sureties  to  be 

approved  by  the  court. 

(Signed)     J.  K., 
County  Judge. 

§  118.    Bond  of  special  administrator. 

Before  entering  upon  the  duties  of  his  office,  a  spe- 
cial administrator  is  required  to  give  a  bond  in  such 
sum  as  the  court  shall  direct,  conditioned  to  make  a 
true  inventory  of  the  goods,  chattels,  rights,  credits 

*  Keegan's  Estate  v.  Welch,  83  Neb.  166,  119  N.  W.  252. 
4  L.  O.  L.,  §  1156. 

(174) 


Chap.  10]  SPECIAL   ADMINISTRATION.  §  118 

and  effects  of  the  deceased  which  may  come  into  his 
possession  or  knowledge,  and  that  he  will  truly  account 
for  all  the  goods,  chattels,  credits  and  effects  of  the 
deceased  which  shall  be  received  by  him  whenever  re- 
quired by  the  county  court,  and  that  he  will  deliver  the 
same  to  the  executor  or  administrator  of  the  estate,  or 
to  the  person  who  may  be  legally  authorized  to  receive 
them.5  The  county  judge  has  the  right,  which  he 
should  not  hesitate  to  exercise,  to  require  all  sureties 
to  justify  under  oath.  The  statute  does  not  require 
them  to  be  freeholders  of  the  county,  though  this  is  the 
usual  practice.  The  bond  should  run  to  the  county 
judge.  It  is  not  necessary  that  his  name  appear 
therein.6 

Form  No.  36. 
BOND    OF    SPECIAL    ADMINISTRATOR. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and 
E.  F.  and  G.  H.,  as  sureties,  are  jointly  and  severally  held  and  firmly 

bound  unto  the  county  judge  of  county  in  the  penal  sum  of 

$ ,  for  which  payment  well  and  truly  to  be  made  we  do  hereby 

bind  ourselves,  our  heirs,  executors,  administrators,  and  assigns  by 
these  presents. 

Whereas,  on  the day  of  ,  19 — ,  an  order  of  said  court 

was  entered  for  the  appointment  of  C.  D.  as  special  administrator  of 
the  estate  of  A.  B.,  deceased,  upon  his  filing  a  bond  with  sureties  to 
be  approved  by  the  court  in  the  penal  sum  of  $ : 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  C.  D.  shall  make  and  return  a  true  inventory  of  all  the  goods, 
chattels,  rights,  credits,  and  effects  of  the  said  A.  B.,  deceased,  which 
shall  come  into  his  possession  or  knowledge,  and  will  truly  account 
for  all  the  goods,  chattels,  credits,  and  effects  of  said  deceased  re- 
ceived by  him  whenever  required  by  said  court  so  to  do,  and  deliver 
the  same  to  the  person  or  persons  who  shall  afterward  be  appointed 

5  Rev.  Stats.,  c.  17,  §  80,  [1344]. 
«  Post,  §  454. 

(175) 


§  118  PROBATE    AND   ADMINISTRATION.          [Chap.  10 

executor  [administrator]  of  said  estate,  or  such  other  person  as  shall 
be  legally  authorized  to  receive  the  same,  then  this  obligation  to  be 
null  and  void;  otherwise  to  be  in  full  force  and  effect. 

Dated  this day  of ,  19 — . 

(Signed)  C.  D. 
E.  F. 
G.  H. 

I  hereby  approve  of  the  foregoing  bond  both  as  to  form  and  suffi- 
ciency of  sureties. 

(Signed)     J.  K., 
County  Judge. 

Form  No.  37. 
LETTEES  OF  SPECIAL  ADMINISTRATION. 

State  of  Nebraska, County. 

To  C.  D.,  of  said  County: 

Whereas,  A.  B.,  late  of  said  county,  departed  this  life  on  the  • 

day  of ,  19 — ,  being  at  the  date  of  his  death  a  resident  of  said 

county,  by  reason  whereof  the  administration  of  his  estate  doth  de- 
volve upon  the  county  court  of  said  county,  and  it  appearing  necessary 
that  a  special  administrator  be  appointed  thereon: 

Now,  therefore,  you  are  hereby  appointed  special  administrator  of 
said  estate,  with  authority  only  to  act  in  collecting  and  taking  charge 
of  the  assets  of  said  estate.  You  are  required,  within  two  weeks, 
also  to  make  and  return  to  this  court  a  true  inventory  of  all  the 
rights,  chattels,  goods,  credits,  and  effects  of  the  said  estate  which 
may  come  into  your  possession  or  be  within  your  knowledge,  to  have 
the  sole  custody  and  management  of  said  estate  under  the  direc- 
tion of  this  court,  to  make  and  render  unto  this  court  an  account 
of  your  doings  in  regard  to  said  estate  whenever  required  by  this 
court,  and  to  perform  such  other  duties  as  may  be  required  of  you 
by  law  and  the  directions  of  this  court. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  my 

official  seal  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 


Chap.  10]  SPECIAL    ADMINISTRATION.  §  119 

Form  No.  37a — Oregon. 

LETTERS  OF  SPECIAL  ADMINISTRATION. 
State  of  Oregon, 
County    of    , — ss. 

To  all  persons  to  whom  these  presents  shall  come,  greeting: 

Know  ye  that  it  appearing  to  the  court  aforesaid  that  A.  B.  has 
died  leaving  an  instrument  purporting  to  be  a  last  will  and  testament, 
and  was  at  the  date  of  his  death  seised  and  possessed  of  real  and  per- 
sonal property  within  this  state,  and  that  by  reason  of  delay  in  the 
issue  of  letters  testamentary,  the  court  finds  that  it  is  necessary  that 
a  special  administrator  be  appointed  to  take  charge  of  said  estate, 
pending  the  proceedings  for  the  issue  of  regular  letters,  such  court 
has  duly  appointed  C.  D.  special  administrator  of  the  estate  of  said 
A.  B.;  this  therefore  authorizes  said  C.  D.  to  take  charge  of  and 
administer  said  estate  as  such  special  administrator  according  to  law. 
In  testimony  whereof,  I,  E.  F.,  clerk  of  the  county  court,  have  here- 
unto subscribed  my  name  and  affixed  the  seal  of  said  court  this 

day   of  ,   19—. 

§  119.    Powers  and  duties  of  special  administrator. 

A  special  administrator  is  an  officer  of  the  court 
possessing  such  powers  and  authority  as  is  conferred 
on  him  by  the  statute.  His  duties  are  more  like  those 
of  an  agent  or  conservator  than  an  administrator.7 
They  are  to  collect  the  goods,  chattels,  rights,  credits 
and  effects  of  the  deceased,  and  preserve  the  same 
until  an  administrator  is  appointed,  for  which  pur- 
poses he  may  commence  and  maintain  suits  as  such 
administrator,  including  special  proceedings,  and  sell 
such  perishable  and  other  property  as  the  court  may 
order.8  His  power  extends  over  the  real  estate  of  his 
decedent  and  he  may  collect  rents  and  execute  a  valid 
lease  of  the  same.9 

1  Long  v.  Burnett,  13  Iowa,  33. 

8  Rev.  Stats.,  c.  17,  §  78,  [1342] ;  Kaminer  v.  Hope,  9  S.  C.  258. 

»  Keegan's  Estate  v.  Welch,  83  Neb.  166,  119  N.  W.  251. 

12 — Pro.  Ad.  (177) 


§  119  PBOBATE   AND    ADMINISTRATION.          [Chap.  10 

It  is  his  duty  to  appear,  the  same  as  a  person  acting 
under  regular  letters,  and  defend  against  all  suits 
pending  or  claims  filed  against  the  estate,  and  may  set 
up  any  lawful  counterclaim  or  setoff,10  but  cannot  be 
called  on  in  any  other  way  to  pay  the  debts  of  the 
deceased.11 

His  powers  and  duties  in  Oregon  are  identical  with 
those  of  a  regular  administrator,  except  that  he  has 
nothing  to  do  with  the  debts  and  demands  against  the 
estate  and  no  power  to  discharge  any  obligation  of  the 
deceased.12 

If  he  deems  it  necessary  to  sell  any  of  the  personal 
property  he  should  make  application  therefor  by  veri- 
fied petition  to  the  county  court  in  substantially  the 
same  manner  as  an  administrator.  A  sale  may  be 
ordered  without  notice  of  the  application  and  may  be 
either  a  private  sale  or  in  the  usual  course  of  business 
or  at  public  auction.  He  should  within  ten  days  from 
the  date  of  his  letters  file  a  complete  inventory  of  all 
the  assets  collected  by  him.  An  appraisement  is  not 
necessary.13 

Under  the  Oregon  practice  he  is  governed  by  the 
same  rules  regarding  the  filing  of  his  inventory  and 
the  appraisement  as  an  administrator.14 

10  Cadman  v.  Richards,  13    Neb.    384,  14    N.  W.  159;  Sullivan  v. 
Nicoulin,  113  Iowa,  76,  84  N.  W.  978. 

11  Eev.  Stats.,  c.  17,  §  79,   [1343]. 

12  L.  O.  L.,   §  1156. 

is  Eev.  Stats.,  c.  17,  §97,  [1361], 
14  L.  O.  L.,  §  1356. 

(178) 


Chap.  10]  SPECIAL    ADMINISTRATION.  §  119 

Form  No.  38. 

PETITION  OF  SPECIAL  ADMINISTRATOR  FOR  LEAVE  TO  SELL 
PERSONALTY. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  day  of  ,   19 — ,  letters  of  special   administration 

upon  said  estate  issued  to  him  out  of  and  under  the  seal  of  said  court, 
and  that  he  is  now  special  administrator  of  said  estate;  that  on  the 

day  of ,  19 — ,  he  filed  his  inventory  of  said  estate;  that, 

as  appears  from  said  inventory,  a  portion  of  the  assets  of  said  estate 
consists  of  [here  set  out  a  description  of  personalty  administrator 
seeks  leave  to  sell,  and  reasons  why  the  best  interests  of  said  estate 
•will  be  subserved  by  said  sale]. 

Your  petitioner  therefore  prays  that  an  order  may  be  made  by  said 
court  granting  him  permission  to  sell  the  following  described  per- 
sonalty belonging  to  said  estate  [describe  property]  for  the  highest 
market  price,  and  upon  such  terms  as  the  court  may  deem  advisable. 

Dated  this  day  of  ,  19 — . 

(Signed)     C.  D., 
Special  Administrator. 

[Add  verification,  Form  No.  5.] 

Form  No.  39. 

ORDER     GRANTING     SPECIAL     ADMINISTRATOR    LEAVE    TO 
SELL  PERSONALTY. 

[Title  of  Cause  and  Court.] 

This  cause  came  on  for  hearing  on  this  day  of  ,  19 — , 

upon  the  petition,  duly  verified,  of  C.  D.,  special  administrator  of 
said  esfate,  for  leave  of  the  court  to  sell  the  following  described  per- 
sonalty belonging  to  said  estate  [describe  personalty],  and  was  sub- 
mitted to  the  court.  The  court  finds  from  the  evidence  that  the  best 
interests  of  said  estate  will  be  subserved  by  said  proposed  sale. 

It  is  therefore  ordered  that  said  special  administrator  be,  and  he 
hereby  is,  authorized  and  empowered  to  sell  at  public  auction  to  the 
highest  bidder  for  cash  or  secured  notes  the  above-described  per- 
sonalty, and  that  he  cause  notice  of  the  time  and  place  of  said  sale 
to  be  given  by  posting  notices  thereof,  and  by  causing  the  same  to 
be  published times  in  the ,  a  newspaper  printed  and  pub- 
lished in  said  county. 

(Signed)     J.   K., 
County  Judge. 

(179) 


§  120  PROBATE   AND   ADMINISTRATION.          [Chap.  10 

§  120.    Accounting  by  special  administrator. 

Upon  the  issue  of  letters  testamentary  or  of  admin- 
istration, his  authority  at  once  ceases,  and  he  should 
forthwith  deliver  to  the  executor  or  administrator  all 
the  goods,  chattels,  credits  and  effects  of  the  deceased 
which  have  come  into  his  hands,  and  surrender  to  him 
the  control  of  any  suits  pending,  in  which  the  estate  is 
either  plaintiff  or  defendant.15 

Special  administration  accounts  should  be  kept  sepa- 
rate from  those  of  the  executor  or  administrator,  even 
though  letters  subsequently  issued  to  the  special  ad- 
ministrator on  account  of  the  liability  of  the  sureties 
on  the  special  administration  bond.  His  account 
should  be  a  full  statement  of  all  the  transactions  per- 
taining to  the  estate,  with  a  list  of  the  property  in  his 
hands  to  be  turned  over  to  the  executor  or  adminis- 
trator. He  should  charge  himself  with  all  moneys  re- 
ceived and  other  assets  collected,  and  credit  himself 
with  expenses  necessarily  incurred  in  the  prosecution 
of  suits,  collection  of  assets,  sales  of  personalty,  fees 
of  the  county  court,  and  other  legitimate  expenses,  and 
with  the  effects  turned  over  to  the  executor  or  admin- 
istrator. He  is  entitled  to  compensation  for  his  ser- 
vices, to  be  fixed  by  the  court,  usually  commissions  on 
the  same  basis  as  an  executor  or  administrator.  Where 
he  acts  in  both  capacities,  he  is  not  entitled  to  double 
commissions.  The  account  should  be  under  oath. 
Notice  of  the  hearing  should  be  given  the  executor  or 
administrator.16  The  executor  or  administrator  of  a 

15  Rev.  Stats.,  c.  12,  §  86,  [1345] ;  Cadman  v.  Richards,  13  Neb. 
384,  14  N.  W.  159. 

i«  Reed  v.  Whipple,  140  Mich.  7,  103  N.  W.  548. 

(180) 


Chap.  10]  SPECIAL    ADMINISTRATION.  §  120 

special  administrator  is  the  proper  party  to  render 
the  account  when  such  special  administrator  dies  be- 
fore his  duties  are  completed.17 

Form  No.  40. 

ACCOUNT  OF  SPECIAL  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 
C.  D.,  Special  Administrator, 
In  Account  with 

Estate  of  A.  B.,  Deceased. 

Charges. 
19 — .     To   cash  received  from  accounts  collected    [items].. $ 

To  cash  received  from  notes  collected   [items] 

To  cash  received  from   sales   of  property  per 

Order   of   the   county   court    [items] 


Total   cash   received. 


Disbursements. 

19 — .     By  county  judge's  fees    [items] $ 

By  expenses  of  sales,  costs  paid  and  other  expenses 

paid   [items]    

By  commissions  on  $ 


Total  disbursements    $ 


Balance  on  hand    $ 

I  have  charged  myself  with  the  following  described  articles  of  per- 
sonalty, goods,  credits,  and  effects  of  said  estate  [describe  same], 
and  turned  the  same  over  to  E.  F.,  executor  of  said  estate,  and  hold 
his  receipt  therefor.  I  have  in  my  possession,  to  be  turned  over  to 
said  E.  F.,  executor,  the  sum  of  $ ,  cash. 

State  of  Nebraska, 

County, — ss. 

C.  D.,  special  administrator  of  the  estate  of  A.  B.,  deceased,  being 
first  duly  sworn,  on  oath  says  that  the  foregoing  is  a  true  statement 
of  his  account  as  special  administrator  of  the  estate  of  A.  B.,  deceased. 

(Signed)     C.  D. 

17  Reed  v.  Whipple,  supra. 

(181) 


§  121  PROBATE    AND    ADMINISTRATION.          [Chap.  10 

Subscribed  in  my  presence  and  sworn  to  before  me  this day 

of  ,  19—. 

(Signed)     J.   K., 

County  Judge. 
Form  No.  41. 

ORDER  APPROVING  ACCOUNT  OF  SPECIAL  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

Now,  on  this  day   of  ,   19 — ,  this  cause  came  on  for 

hearing  upon  the  account  of  C.  D.,  special  administrator  of  said  estate. 
Upon  consideration  whereof,  the  court  finds  said  account  to  be  just 
and  correct.  It  is  therefore  ordered  that  said  account  be  allowed, 
and  the  said  C.  D.,  having  filed  the  receipt  of  E.  F.,  executor,  for 
the  specific  articles  of  personalty  remaining  in  his  hands  unsold  and 
upon  the  said  C.  D.  filing  in  this  court  the  receipt  of  E.  F.,  executor 
of  said  estate,  for  the  amount  of  money  due  him  as  per  said  account, 
he  be  granted  his  discharge. 

(Signed)     J.  K., 
County  Judge. 

Form  No.  42. 
RECEIPT  TO  SPECIAL  ADMINISTRATOR. 

Received  of  C.  D.,  special  administrator  of  the  estate  of  A.  B.,  de- 
ceased, the  sum  of  dollars,  being  the  amount  found  by  the 

county  court  of  county,  Nebraska,  to  be  due  said  estate  from 

C.  D.  on  his  final  account,  and  the  balance  of  the  assets  collected  by 
him  and  belonging  to  said  estate. 

Dated  this day  of ,  19 — . 

(Signed)     E.   F., 
Executor  of  the  Estate  of  A.  B.,  Deceased. 

§  121.    Discharge  of  special  administrator. 

The  appointment  of  an  executor  or  administrator 
operates  per  se  as  a  discharge  of  the  special  admin- 
istrator.18 It  is,  however,  the  usual  practice  to  issue 
to  him  a  formal  discharge  upon  the  filing  of  the  re- 
ceipt from  the  personal  representative. 

18  Cadman  v.  Richards,  13  Neb.  384,  14  N.  W.  159;  Malone  v.  Cor. 
nelius,  34  Or.  196,  55  Pac.  536. 

(182) 


Chap.  10]  SPECIAL   ADMINISTRATION.  §  121 

Form  No.  43. 

DISCHARGE  OF  SPECIAL  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

Whereas,  C.  D.,  special  administrator  of  the  estate  of  A.  B.,  de- 
ceased, has  faithfully  performed  all  the  duties  required  of  him  by 
law  and  the  orders  of  this  court  in  connection  therewith,  and  has 
duly  accounted  for  all  the  property  of  said  estate  received  by  him 
as  such  administrator,  he  is  hereby  discharged  from  any  and  all  lia- 
bility connected  with  the  special  administration  of  said  estate. 

Dated  this day  of ,  19—. 

(Signed)     J.  K., 
County  Judge. 

(183) 


CHAPTER  XI. 

LETTERS  TESTAMENTARY. 

§  122.  Executors — Administrators  With  the  Will  Annexed. 

123.  To  Whom  Letters  may  Issue. 

124.  Eight  to  Act  as  Executor  not  Assignable. 

125.  Joint   Executors. 

126.  Grant  of  Letters  and  Bond. 

127.  Oath  of  Executor. 

128.  Bond   of  Residuary  Legatee. 

129.  Appointment  of  Administrator  With  the  Will  Annexed. 

130.  Preferences. 

131.  Procedure. 

§  122.  Executors — Administrators  with  the  will  an- 
nexed— Definitions. 

An  executor  is  he  to  whom  is  intrusted  the  carrying 
out  of  the  provisions  of  a  will.  His  power  is  founded 
upon  the  special  confidence  of,  and  actual  appointment 
by  the  deceased,1  and  confirmed  by  the  issue  of  letters 
testamentary  out  of  and  under  the  seal  of  a  court 
of  probate  jurisdiction.2 

A  testator  should  designate  or  appoint  his  executor, 
or  designate  a  party  to  make  the  appointment.  His 
failure  to  do  so  does  not  invalidate  his  will.  Our  stat- 
ute makes  no  provision  for  the  appointment  of  a  per- 
son to  administer  the  estate  of  a  testator  unless  some- 
one is  named  for  that  purpose  in  the  will,  though 
showing  no  intention,  either  expressly  or  by  implica- 
tion, of  abrogating  the  common-law  right  of  appoint- 
ment. The  court  therefore  has  power  to  appoint  an 
administrator  with  the  will  annexed.3 

1  2  Bl.  Com.  494. 

2  Holladay  v.  Holladay,  16  Or.  147,  19  Pac.  81. 

3  Brown  v.  Just,  118  Mich.  678,  77  N.  W.  263;  Hartnet  v.  Wandell, 
60  N.  Y.  346;  Woodward  v.  Darcy,  Plowd.  185. 

(184) 


Chap.  11]  LETTEBS   TESTAMENTARY.  §  123 

An  administrator  with  the  will  annexed  is  a  person 
appointed  by  the  court  to  carry  out  the  provisions  of 
the  instrument  when  the  person  named  is  dead,  refuses 
to  qualify,  is  a  minor  or  otherwise  legally  incompe- 
tent, or  when  none  is  named.4 

An  administrator  de  bonis  non  with  the  will  annexed 
is  a  person  appointed  by  the  court  to  complete  the 
administration  of  the  estate  when  the  executor  previ- 
ously appointed  shall  die,  resign  or  be  discharged  be- 
fore the  administration  is  finished.5 

§  123.    To  whom  letters  may  issue. 

The  rule  laid  down  by  Blackstone  is  that  any  person 
may  be  appointed  executor  of  a  will  who  is  himself 
capable  of  making  such  an  instrument.6  At  common 
law,  also,  a  minor,7  a  married  woman8  and  an  alien 
were  competent.9  In  the  case  of  a  minor,  administra- 
tion with  the  will  annexed  was  committed  to  another 
during  minority. 

Statutes  have  considerably  modified  the  common- 
law  rule  by  requiring  that  the  nominee  be  legally  com- 
petent10 or  qualified,11  which  of  course  bars  those 
physically  or  mentally  incapable  of  transacting  their 
business  affairs  and  minors.  Courts  do  not  act  as 

4  Stebbins  v.  Lathrop,  4  Pick.   (Mass.)   33;  Leavitt  v.  Leavitt,  65 
N.  H.  102,  18  Atl.  920. 

5  Chamberlin's  Appeal,  70  Conn.  363,  39  Atl.  734. 

6  2  Bl.  Com.  503. 

7  Piggott's  Case,  5  Coke,  29a. 

8  In  re  Stewart,  56  Me.  300;  English's  Exr.  v.  McNair's  Admr.,  34 
Ala.  40. 

»  Co.  Litt.  129. 

10  Rev.  Stats.,  c.  17,  §  62,  [1326]. 

11  L.  O.  L.,  §  1142. 

(185) 


§  123  PEOBATE   AND   ADMINISTRATION.          [Chap.  11 

strictly  in  passing  on  the  qualifications  of  an  executor 
as  an  administrator,  but  approve  the  nomination  unless 
the  party  is  clearly  within  the  statutory  prohibition.12 

In  Oregon  letters  cannot  issue  to  a  nonresident,  but 
if  such  nonresident  moves  into  the  state  and  applies 
for  the  appointment  within  thirty  days,  letters  may 
issue.13 

In  this  state  nonresidence  is  not  a  bar,  though  a 
cause  for  removal,  but  a  matter  to  be  considered  by 
the  court  in  determining  whether  the  party  is  com- 
petent.14 Letters  may  issue  to  a  trust  company  duly 
authorized  by  its  charter,  and  having  its  principal  place 
of  business  in  the  county  in  which  the  will  is  pro- 
bated;15 in  Oregon,  to  any  authorized  trust  company.16 

The  weight  of  authority  is  that  if  the  nominee  can 
give  a  satisfactory  bond,  though  somewhat  lacking  in 
integrity,  business  experience  or  even  moral  character, 
the  wishes  of  the  testator  should  be  complied  with  and 
letters  granted  him.17 

In  the  case  of  minors,  letters  of  administration  with 
the  will  annexed  are  issued  to  another  party,  who  per- 
forms the  duties  until  the  minor  becomes  of  age.  If 
two  are  named,  one  of  whom  is  a  minor,  letters  issue 
to  the  one  who  is  competent  and  to  the  minor  when  his 
disability  is  removed.18 

12  Holladay  v.  Holladay,  16  Or.  147,  19  Pac.  81. 

13  L.  O.  L.,  §  1155. 

H  Hammond  v.  Wood,  15  E.  I.  566,  10  Atl.  623. 
is  Kev.  Stats.,  c.  14,  §  185,   [743]. 

16  Laws  1913,  p.  722. 

17  Berry  v.  Hamilton,   12  B.  Mon.    (Ky.)    193;   Saxe  v.  Saxe,  113 
Wis.  557,  97  N.  W.  187;  Li  Po  Tai's  Estate,  108  Cal.  484,  41  Pac.  486. 

is  Rev.  Stats.,  c.  17,  §  67,  [1331];  L.  0.  L.,  §  1155. 

(186) 


Chap.  11]  LETTERS   TESTAMENTARY.  §  124 

§  124.    Right  to  act  as  executor  not  assignable. 

The  office  of  executor  is  a  personal  trust,  and  the 
person  named  by  the  testator  must  either  accept  or 
reject  it.  He  has  no  authority  to  assign  or  transfer 
the  right  to  any  person  or  corporation,  nor  in  any  way 
by  himself  confer  on  another  the  rights  or 'liabilities 
belonging  to  him.19  If  he  does  not  wish  to  accept  the 
position,  he  should  file  a  formal  renunciation  in  the 
county  court.20  If  he  changes  his  mind,  he  may  re- 
tract the  same  at  any  time  before  the  order  for  letters 
of  administration  with  the  will  annexed  is  entered  by 
filing  a  written  notice  thereof  with  the  court.21 

Form  No.  44. 

RENUNCIATION  OF  EXECUTOR. 
I,  C.  D.,  named  as  executor  in  a  certain  instrument  purporting  to  be 

the  last  will  and  testament  of  A.  B.,  late  of  ,  do  hereby  refuse 

to  accept  the  appointment  as  executor  of  said  instrument. 

Dated  this  day  of  ,  19—.     , 

(Signed)     C.  D. 
Witness: 

E.  F. 

Form  No.  45. 

RETRACTION    OF   RENUNCIATION. 
I,  C.  D.,  named  as  an  executor  of  an  instrument  purporting  to  be  the 

last  will  of  A.  B.,  late  of  ,  now  on  file  in  the  county  court  of 

said  county,  do  hereby  retract  and  withdraw  my  renunciation  of  the 
appointment  as  executor  of  said  instrument  filed  by  me  in  said  court 

on  the  —  day  of ,  19 — . 

Dated  this  day  of  -      — ,  19—. 

(Signed)     C.  D., 
Witness: 

(Signed)     E.  F. 

19  Ellicott   v.   Ellicott,   38   N.  J.   Eq.    604;    Nelson    v.   Boynton,   54 
Ala.  368. 

20  Stebbins  v.  Lathrop,  4  Pick.  (Mass.)  33. 

21  Robertson  v.  McGeoch,  11  Paige  Ch.  (N.  Y.)  640. 

(187) 


§§125,126      PEOBATE   AND   ADMINISTRATION.          [Chap.  11 

§  125.    Joint  executors. 

Where  two  or  more  persons  are  nominated  executors 
and  some  renounce  the  trust  or  refuse  to  give  bond, 
letters  may  issue  to  such  as  do  qualify,22  and  he  or 
they  will  have  the  same  authority  to  perform  every  act 
and  discharge  every  trust  required  and  allowed  by 
the  will,  and  their  acts  shall  be  as  valid  and  effective 
for  every  purpose  as  if  all  were  authorized  and  act 
together,23  and  such  is  the  rule  irrespective  of  the 
statute. 

§  126.    Grant  of  letters  and  bond. 

The  person  named  as  executor  is  allowed  twenty 
days  from  the  grant  of  letters  in  which  to  give  a  bond, 
which  must  be  in  such  penal  sum  as  may  be  fixed  by 
the  court,  conditioned  that  he  make  and  return  to  the 
county  court  within  three  months  a  true  and  perfect 
inventory  of  all  the  goods,  chattels,  rights  and  credits 
of  the  deceased  which  shall  have  come  into  his  knowl- 
edge or  possession,  or  to  the  possession  of  any  other 
person  for  him;  and  out  of  the  same  to  pay  and  dis- 
charge all  debts,  legacies  and  charges  chargeable  on 
the  same  or  such  dividends  thereon  as  shall  be  ordered 
and  decreed  by  the  county  court;  to  render  a  true  and 
just  account  of  his  administration  to  the  county  court 
within  one  year,  and  at  any  other  time  when  required 
by  such  court,  and  to  perform  all  orders  and  decrees 
of  the  county  court  by  the  executor  to  be  performed 
in  the  premises.24 

22  Rev.  Stats.,  c.  17,  §  66,  [1310]. 

23  Rev.  Stats.,  c.  17,  §  72,  [1336] ;  L.  O.  L.,  §  1142. 

24  Rev.  Stats.,  c.  17,  §  63,  [1327]. 

(188) 


Chap.  11]  LETTERS   TESTAMENTARY.  §  126 

In  Oregon  the  penalty  is  fixed  by  the  county  court 
at  double  the  estimated  value  of  the  personal  property 
plus  double  the  estimated  value  of  the  annual  rents 
and  profits  from  the  real  estate,  and  is  conditioned 
upon  the  faithful  performance  of  the  duties  of  his  trust 
according  to  law.25 

When  two  or  more  executors  are  appointed,  they 
execute  a  joint  or  separate  bond,  each  with  sureties, 
at  fheir  option.26 

A  good  many  wills  contain  the  direction  that  "no 
bond"  or  "no  other  bond  than  his  personal  obliga- 
tion" be  given  by  the  executor.  In  such  cases  it  has 
been  held  within  the  discretion  of  the  court  to  accept 
such  obligation  or  require  a  regular  bond.27  The  usual 
practice  is  to  require  a  regular  bond. 

In  Oregon,  where  a  testator  expressly  declares  that 
no  bonds  shall  be  required  of  his  executor,  he  may 
qualify  by  taking  the  official  oath,  but  the  court  may  at 
any  time  require  a  bond  as  in  other  cases.  Qualifying 
without  giving  a  bond  does  not  release  him  from  any 
civil  or  criminal  liability.28 

A  state  or  county  officer  required  by  law  to  give  a 
bond  should  not  become  a  surety,  nor  should  an  at- 
torney practicing  within  the  district,29  but  should  an 
attorney  become  a  surety  and  the  bond  be  approved, 
he  cannot  escape  liability  on  the  ground  that  he  is 
made  incompetent  by  the  statute.30  A  surety  com- 

25  L.  O.  L.,   §  1153. 

20  Rev.  Stats.,  c.  17,  9  90,  [1354]. 

27  Felton  v.  Sowles,  57  Vt.  382. 

28  L.  O.  L.,  §  1153. 

29  Rev.  Stats.,  c.  58,  §  170,  [5720]. 

so  Tester  v.  Crowley,  17  Neb.  209,  22  N.  W.  422;  Luce  r.  Foster, 
42  Neb.  818,  60  N.  W.  1027. 

(189) 


§  126  PEOBATE    AND    ADMINISTRATION.          [Chap.  11 

pany  authorized  to  do  business  within  the  state  may 
be  accepted.81 

In  Oregon,  when  the  penal  sum  of  the  bond  exceeds 
two  thousand  dollars,  three  or  more  sureties  may  be- 
come severally  liable  for  portions  for  said  sum,  if  the 
aggregate  for  which  such  sureties  become  liable  shall 
equal  the  penal  sum  required  in  the  undertaking.32 

If  the  person  named  as  executor  shall  refuse  to  ac- 
cept the  trust  or  neglect  for  twenty  days  to  give  the 
bond  required  by  law,  he  forfeits  his  rights  to  the 
trust.33 

No  time  within  which  the  bond  must  be  given  is  fixed 
by  the  Oregon  statute;  hence  a  reasonable  time  should 
be  allowed  by  the  order,  which  should  not  exceed 
twenty  or  thirty  days.  The  form  of  bond  required  by 
the  Oregon  law  is  exclusive,  and  there  is  no  provision 
for  a  residuary  legatee's  bond. 

Form  No.  46. 
BOND  OF  EXECUTOR. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  of  the  county  of 
-,  state  of  Nebraska,  as  principal,  and  E.  F.,  of  said  county, 


as  surety,  are  held  and  firmly  bound  unto  the  county  judge  of 

county  in  the  penal  sum  of dollars  ($ ),  for  the  payment 

of  which  well  and  truly  to  be  made  we  do  hereby  jointly  and  severally 
bind  ourselves,  our  heirs,  executors,  administrators,  and  assigns. 

Dated  this day  of  -      — ,  19 — . 

Whereas,  C.  D.  has  been  named  in  the  last  will  and  testament  of 
A.  B.,  deceased,  as^  executor,  and  has  accepted  said  trust: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if 
the  said  C.  D.  shall  make  and  return  to  the  county  court  of  said 
county,  within  three  months,  a  true  and  perfect  inventory  of  all 

31  Rev.  Stats.,  c.  58,  §  198,  [5728];  L.  O.  L.,  §  4678. 

32  L.  O.  L.,   §  1154. 

33  Rev.  Stats.,  c.  17,  §  65,  [1329]. 

(190) 


Chap.  11]  LETTERS   TESTAMENTARY.  §  126 

the  goods,  chattels,  rights,  credits,  and  estate  of  the  deceased  which 
shall  come  to  his  knowledge  or  possession,  or  to  the  possession  of 
any  other  person  for  him;  administer  according  to  law  and  the  will 
of  the  testator  all  his  goods,  chattels,  rights,  credits,  and  estate 
which  shall  at  any  time  eome  to  his  possession,  or  to  the  possession 
of  any  other  person  for  him,  and  out  of  the  same  to  pay  and  dis- 
charge all  debts,  legacies,  and  charges  chargeable  on  the  same,  or 
such  dividends  thereon  as  shall  be  ordered  and  decreed  by  the  county 
court;  render  a  just  and  true  account  of  his  administration  to  the 
county  court  within  one  year,  and  at  any  other  time  when  required 
by  said  court;  and  perform  all  orders  and  decrees  of  the  county 
court  by  said  executor  to  be  performed  in  the  premises, — then  this 
obligation  to  be  null  and  void;  otherwise  to  be  and  remain  in  full 
force  and  effect. 

(Signed)     C.  D. 
E.  F. 

Form  No.  46a — Oregon. 
UNDERTAKING    OF    EXECUTOR. 

Whereas,  on  the day  of  ,  19 — ,  the  will  of  A.  B.  was 

admitted  to   probate  in   the  county  court   of  county,   Oregon, 

and  an  order  of  said  court  was  thereupon  made  and  entered  for  the 
issue  of  letters  testamentary  thereon  to  C.  D.,  who  was  named  therein 

as   executor  upon   his   filing  an   undertaking  in   the   sum   of   $ , 

to  be  approved  by  the  judge  of  said  county  court; 

Now,  therefore,  we,  said  C.  D.,  as  principal,  and  E.  F.  and  G.  H., 
both  of  said  county,  as  sureties,  do  hereby  undertake  to  the  estate 
of  said  A.  B.,  for  the  use  of  all  persons  interested  therein  in  the  sum 
of  $ ,  that  said  C.  D.  shall  faithfully  perform  the  duties  de- 
volving upon  him  as  such  executor  according  to  law. 

(Signed)     C.  D. 
E.  F. 
G.  H. 
Witness: 

(Signed)     L.  M. 

I  hereby  approve  the  above  undertaking  both  as  to  form  and  suffi- 
ciency of  sureties. 

J.  K., 
Judge  of  the  County  Court. 

(191) 


§  126  PEOBATE   AND   ADMINISTRATION.         [Chap.  11 

The  penalty  of  the  bond  may  be  reduced  by  a  deposit, 
under  order  of  the  court,  of  a  portion  of  the  assets  with 
a  legally  authorized  surety  company,  for  safekeeping. 
An  application  may  be  made  for  such  purpose  to  the 
court,  notice  given  to  the  parties  interested  as  the 
court  may  direct,  and  after  a  hearing  the  court  may 
order  such  part  of  the  assets  as  may  be  proper  depos- 
ited with  such  company,  and  the  bond  to  be  given  ad- 
justed to  cover  only  the  property  remaining  in  the 
hands  of  the  representative,  thereby  reducing  the  pre- 
mium, in  case  a  surety  bond  is  given.  The  property 
so  deposited  is  held  by  the  trust  company  under  the 
orders  and  direction  of  the  court.34 

Form  No.  46b — Oregon. 
APPLICATION  FOR  REDUCTION  OF  PENALTY  OF  BOND. 

[Title  of  Cause  and  Court.] 

Comes  now  G.  B.,  named  as  executor  in  the  last  will  and  testa- 
ment of  A.  B.,  which  said  will  was  duly  admitted  to  probate  in  said 

court  on    the  day  of  ,  19 — ,    and    letters    testamentary 

ordered  issued  to  said  applicant  upon  his  filing  a  bond  in  the  sum 
of  $ ;  that  among  the  personal  assets  of  said  estate  are  [a  cer- 
tificate of shares  of  stock  in  the company,  of  the  value 

of  $ ],  [a  note  of  one  G.  H.,  secured  by  mortgage  on  real  estate, 

of  the  value  of  $ ],  that  said  applicant  desires  to  deposit  said 

certificate  of  shares  of  stock  and  said  note  and  mortgage  in  the , 

a  legally  authorized  surety  company  of  the  state  of  Oregon,  to  the  end 
that  his  bond  as  such  executor  may  be  reduced  to  the  sum  of  $ . 

Applicant  therefore  prays  that  notice  be  given  the  parties  inter- 
ested as  the  court  may  direct,  and  an  order  of  said  court  be  made 
on  the  hearing  of  this  application  directing  said  executor  to  deposit 
said  shares  of  stock  and  said  note  and  mortgage  with  said  surety 
company  for  safekeeping,  and  fixing  the  amount  of  said  bond  at  the 
eum  of  $ . 

Dated  this day  of  ,  19 — ( 

(Signed)     C.  B. 

[Add  verification.] 

34  Laws  1913,  p.  726. 

(192) 


Chap.  11]  LETTERS   TESTAMENTABY.  §§127,128 

§  127.    Oath  of  executor. 

The  usual  practice  is  for  the  executor  to  execute  and 
file  an  oath  of  office  in  the  county  court.  None,  how- 
ever, is  required  by  the  statute,  and  an  executor  can- 
not escape  liability  on  the  ground  that  none  was 
given.35 

Under  the  Oregon  statute  no  oath  is  required  when 
a  bond  is  given.  When  the  executor  is  relieved  from 
giving  bond  by  the  terms  of  the  will,  and  none  is  re- 
quired of  him  by  the  court,  he  may  qualify  by  taking 
an  oath  to  faithfully  fill  his  trust.36 

Form  No.  46c— Oregon. 
OATH  OF  EXECUTOB. 

I,  C.  D.,  do  solemnly  swear  that  I  will  faithfully  fulfill  the  trust 
devolving  upon  me  as  executor  of  the  estate  of  A.  B.  according  to 
law  and  to  the  best  of  roy  ability.  So  help  me  God. 

(Signed)     C.   D. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — . 

(Seal)  , 

Clerk  County  Court. 

§  128.    Bond  of  residuary  legatee. 

If  the  executor  be  a  residuary  legatee,  he  may,  at 
his  option,  in  place  of  the  foregoing  bond,  give  a  bond 
in  such  sum  and  with  such  sureties  as  the  court  may 
direct,  conditioned  only  to  pay  all  the  debts  and  lega- 
cies of  the  testator,  and  in  such  case  he  shall  not  be 
required  to  return  any  inventory.37  The  effect  of  such 
bond  is  to  pay  the  entire  estate  to  the  legatee,  and 

35  Leahy  v.  Haworth,  141  Fed.  850,  73  C.  C.  A.  84. 
3«  L.  O.  L.,  §  1153. 

37  Eev.  Stats.,  c.  17,  564,  [1328];  Conant  v.  Stratton,  107  Mass. 
474. 

13— Pro.  Ad.  (193) 


§  128  PROBATE    AND   ADMINISTRATION.          [Chap.  11 

practically  terminate  the  administration.38  He  be- 
comes liable  for  all  fees  and  allowances  due  from  the 
estate,  and  all  allowances  to  the  widow  or  minor  chil- 
dren for  their  support,  and  all  debts  of  the  estate.39 
His  liability  on  the  bond  for  all  the  debts,  fees  and 
allowances  of  the  estate  is  absolute.40 

At  the  same  time  it  does  not  entirely  release  the 
assets  of  the  estate  from  the  lien  of  debts,  expenses  of 
administration  and  legacies.  It  only  releases  such 
real  estate  and  personal  property  as  has  passed  into 
the  hands  of  bona  fide  purchasers.  Legatees  and  cred- 
itors are  not  limited  to  an  action  on  the  bond,  but 
assets  of  the  estate  in  his  hands  may  be  subjected  to 
their  claims  by  the  same  proceedings  as  in  cases  where 
the  ordinary  executor's  bond  was  given.41 

The  advantage  accruing  to  the  executor  in  giving 
such  bond  is  that  it  reduces  the  penal  sum  to  the  mini- 
mum of  satisfying  claimants  and  saves  him  the  labor 
and  expense  of  making  an  inventory.  An  executor 
may  incur  considerable  risk  in  giving  a  bond  of  this 
character,  and  should  satisfy  himself  that  the  condi- 
tion of  the  estate  will  warrant  it  before  doing  so. 

38  Buell  v.  Dickey,  9  Neb.  285,  2  N.  W.  884;  In  re  Cole's  Will,  52 
Wis.  591,  9  N.  W.  664;  Haydock  T.  Duncan,  40  N.  H.  45;  Thompson 
v.  Brown,  16  Mass.  172. 

39  Buell  v.  Dickey,  9  Neb.  285,  2  N.  W.  884;   Stebbins  v.  Smith, 

4  Pick.  (Mass.)  97;  Colwell  v.  Alger,  5  Gray  (Mass.),  67;  Hatheway 
v.  Weeks,  34  Mich.  237;  McElroy  v.  Hatheway,  44  Mich.  399,  6  N.  W. 
867. 

40  Buel  v.  Dickey,  9  Neb.  285,  2  N.  W.  884;  Jones  v.  Richardson, 

5  Met.  (Mass.)  247. 

41  Thompson  v.  Pope,  77  Neb.  308,  109  N.  W.  498;  Caulton  T.  Pope, 
83  Neb.  723,  120  N.  W.  191. 

(194) 


Chap.  11]  LETTEBS   TESTAMENTARY.  §  128 

Form  No.  47. 
BOND  OF  RESIDUARY  LEGATEE. 

Know   all  men  by   these  presents,   that  we,  C.   D.,  of  the  county  of 
and   state   of   Nebraska,   as  principal,   and   E.   F.   and   G.   H , 


of   said    county,   as     sureties,    are    held   and    firmly   bound   unto   the 

county  judge  of  county,  said  state,  in  the  penal  sum  of  

dollars   ($ ),  for  which  payment  well  and  truly  to  be  made  we 

do  hereby  jointly  and  severally  bind  ourselves,  our  heirs,  executors, 
administrators,  and  assigns. 

Dated  this  -    day  of ,  19 — . 

Whereas,  C.  D.  has  been  named  in  the  last  will  and  testament 
of  A.  B.,  deceased,  as  executor  thereof,  and  is  also  the  residuary 
legatee  in  said  will,  and  has  accepted  the  trust  and  the  conditions  of 
said  will: 

Now,  therefore,  the  condition  of  his  obligation  is  such  that  if  the 
above-bonnden  C.  O.  shall  administer  according  to  law  all  the  goods, 
chattels,  rights,  credits,  and  effects  of  the  estate  of  said  A.  B.,  de- 
ceased, which  shall  come  into  his  possession,  or  to  the  possession 
of  any  other  person  for  him,  and  shall  pay  all  the  debts  and  legacies 
of  said  A.  B.,  said  testator,  together  with  the  costs  and  expenses  of 
administration  and  allowances  to  the  widow  and  minor  heirs  of  said 
deceased,  and  shall  render  a  just  and  true  account  of  the  payment 
of  said  debts,  legacies,  charges,  fees,  and  allowances  to  the  county 

court  of  said  county  of  within  one  year  from  this  date,  then 

this  obligation  to  be  null  and  void;  otherwise  to  be  and  remain  in 
full  force  and  effect. 

(Signed)  C.  D. 
E.  F. 
G.  H. 

The  foregoing  bond  approved  by  me  both  as  to  form  and  sufficiency 

of  sureties  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

An  executor  or  administrator  with  the  will  annexed 
cannot,  after  having  given  a  residuary  legatee's  bond, 
withdraw  it,  and  give  one  in  the  usual  form.42 

42  Alger  v.  Colwell,  2  Gray    (Mass.),  404. 

(195) 


§  128  PBOBATE    AND   ADMINISTRATION.         [Chap.  11 

Form  No.  48. 

LETTERS  TESTAMENTAEY. 
State  of  Nebraska, 
County  of  , — ss. 

County  Court  of  said  County. 
In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

By  J.  K.,  County  Judge  for  said  County. 
To  G.  D.,  of  said  County,  Greeting. 

Whereas,  A.  B.  lately  departed  this  life  testate,  being  at  or  Immedi- 
ately previous  to  his  death  an  inhabitant  of  the  county  of  —  — , 
and  having  while  he  lived  and  at  the  time  of  his  decease  estate  within 
the  said  county  of to  be  administered: 

And  whereas,  at  a  session  of  said  county  court,  holden  at  , 

in  said  county,  on  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  nine  hundred  and ,  the  last  will  and  testament  of 

said  deceased  was  duly  proved,  approved,  and  allowed,  and  wherein 
you  are  appointed  executor  thereof,  whereby  the  power  of  committing 
administration  and  full  disposition  of  all  and  singular,  the  goods, 
chattels,  rights,  credits  and  estate  whereof  the  said  deceased  died  pos- 
sessed, in  the  state  of  Nebraska,  and  also  the  hearing,  examining,  and 
allowing  the  account  of  such  administration  doth  appertain  unto  me;  and 
you  have  given  a  bond  in  the  premises,  which  has  been  duly  approved 
and  filed,  as  required  by  law  in  that  behalf: 

Now,  therefore,  trusting  in  your  care  and  fidelity,  I  do  by  these  pres- 
ents commit  unto  you  the  said  full  power  and  authority  to  administer 
and  faithfully  dispose  of,  according  to  law  and  the  will  of  said  testator, 
all  and  singular  the  goods,  chattels,  rights,  credits,  and  estate  of  said 
deceased,  within  the  state  of  Nebraska,  which  shall  at  any  time  come 
to  your  possession,  or  to  the  possession  of  any  other  person  for  you,  and 
to  ask,  gather,  levy,  recover  and  receive  all  goods,  chattels,  rights,  credits, 
and  estate  whatsoever,  of  said  deceased,  which  to  him  while  he  lived 
and  at  the  time  of  his  death  did  belong;  and  to  pay  and  discharge  all 
debts,  legacies,  and  charges  chargeable  on  the  same,  or  such  dividends 
thereon  as  shall  be  ordered  and  decreed  by  said  court.  Hereby  requir- 
ing you  to  make  and  return  to  said  court,  within  three  months,  a  true 
and  perfect  inventory  of  all  the  goods,  chattels,  rights,  credits,  and  real 
estate  of  said  deceased,  which  shall  come  to  your  possession  or  knowl- 
edge, or  to  the  possession  of  any  other  person  for  you,  and  also  to  render 
a  just  and  true  account  of  your  administration  to  said  court,  within  one 
year,  and  at  any  other  time  when  required  by  said  court,  and  to  per- 

(196) 


Chap.  11]  LETTERS    TESTAMENTARY.  §  129 

form  all  orders  and  decrees  of  said  court  by  you  to  be  performed  in 
the  premises. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  the  seal  of 

said  county  court  at  —   — ,  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and . 

(Seal)  , 

County  Judge. 

Form  No.  48a — Oregon. 

LETTERS  TESTAMENTARY. 
State  of  Oregon, 
County  of , — ss. 

To  all  persons  to  whom  these  presents  shall  come,  greeting: 

Know  ye,  that  the  will  of  A.  B.,  deceased,  a  copy  of  which  is  hereto 
annexed,  has  been  duly  proven  in  the  county  court  for  the  county  afore- 
said, and  that  C.  D.,  who  is  named  as  executor  therein,  has  been  duly 
appointed  such  executor  by  the  court  aforesaid;  this  therefore  authorizes 
the  said  C.  D.  to  administer  the  estate  of  said  A.  B.,  deceased,  according 
to  law. 

In  witness  whereof  I,  E.  F.,  clerk  of  said  court,  have  hereunto  sub- 
scribed my  name  and  affixed  the  seal  of  said  court  this  day  of 

,  19-. 

(Seal)  (Signed)     E.  F., 

Clerk  County  Court. 

§  129.  Appointment  of  administrator  with  the  will 
annexed. 

No  person  named  as  executor  in  any  will  who  shall 
refuse  to  accept  the  trust,  or  shall  neglect  to  give  bond 
as  prescribed  for  twenty  days  after  the  probate  of  such 
will,  shall  intermeddle  or  act  as  executor.43 

If  the  nominee  renounces  his  trust,  is  a  minor,  is 
found  incompetent,  or  fails  to  give  bond,  or  if  no  one 
is  designated,  the  court  may  commit  the  administra- 
tion of  the  estate  with  the  will  annexed  to  such  person 
as  would  have  been  entitled  to  administration  had  the 

43  R«v.  Stats.,  c.  17,  §  65,  [1329]. 

(197) 


§§130,131       PKOBATE    AND   ADMINISTRATION.          [Chap.  11 

testator  died  intestate.44  The  records  must  show  the 
existence  of  such  facts  as  give  the  court  jurisdiction  to 
make  the  appointment.45  The  validity  of  the  appoint- 
ment cannot  be  questioned  collaterally.46 

Such  administrator  has  the  same  rights,  powers  and 
duties  as  an  executor,  except  that  when  appointed  on 
account  of  the  minority  of  the  nominee,  the  coming  of 
age  of  the  minor  terminates  his  trust  per  se.47  He  may 
give  a  general  bond  or  one  as  residuary  legatee. 

§  130.    Preferences — Right  to  appointment. 

Those  who  are  entitled  to  preference  as  adminis- 
trators are  entitled  to  letters  of  administration  with 
the  will  annexed.48  Under  this  rule,  which  differs  from 
that  of  the  common  law,  the  surviving  spouse  is  enti- 
tled to  the  first  preference,  then  the  nearest  of  kin 
and  then  creditors.49  A  residuary  legatee  is  also  re- 
garded as  having  a  right  to  the  appointment  on  the 
ground  that  the  costs  of  administration  may  be  thereby 
considerably  lessened.50 

§  131.    Procedure. 

Where  it  is  known  at  the  time  the  will  is  filed  for 
probate  that  the  appointment  of  an  administrator  with 
the  will  annexed  is  necessary,  the  petition  for  probate 
should  contain  sufficient  allegations  to  give  the  court 

44  Rev.  Stats.,  c.  17,  §  66,  [1330] ;  L.  0.  L.,  §  1142. 

45  Landers  v.  Stone,  45  Ind.  404;  Vick  v.  City  of  Vicksburg,  2  How. 
(Miss.)  209. 

46  Peebles  v.  Watts'  Admr.,  9  Dana  (Ky.),  102,  33  Am.  Dec.  531. 

47  Rev.  Stats.,  c.  17,  §§  67,  68,  [1331],  [1332];  L.  O.  L.,  §  1155. 

48  Rev.  Stats.,  c.  17,  §  66,   [1330]  ;  L.  O.  L.,  §  1142. 
4»  Sections  143,  144,  post. 

50  Mallory's  Appeal,  62  Conn,  218,  25  Atl.  109. 

(198) 


Chap.  11]  LETTERS    TESTAMENTARY.  §  131 

jurisdiction  to  make  the  appointment.  Where  objec- 
tions to  the  appointment  of  the  nominee  on  account  of 
incompetency  are  filed,  the  objector  should  add  a 
prayer  for  the  appointment  of  some  designated  person 
or  other  competent  person. 

If  the  party  to  whom  letters  are  ordered  neglects  to 
qualify,  a  petition  should  be  filed  by  someone  inter- 
ested in  the  estate  for  such  appointment.  No  notice 
or  citation  is  required  by  the  statute. 

Form  No.  49. 

PETITION   FOR   LETTERS    OF    ADMINISTRATION   WITH    THE 
WILL  ANNEXED. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
A.  B.,  late  of  said  county,  departed  this  life  at  his  residence  in  said 
county  on  the day  of ,  19 — ,  leaving  a  last  will  and  testa- 
ment, in  which  one  L.  M.  was  named  as  executor;  that  on  the  

day  of  ,  19 — ,  said  L.  M.  filed  in  this  court  his  renunciation  of 

said  trust  [that  said  L.  M.  is  a  minor  of  the  age  of years;  that 

said  L.  M.  is  insane,  and  incapable  of  accepting  said  trust,  or  is  of  un- 
sound mind],  which  said  will  he  now  offers  for  probate,  and  that  said 
will  relates  to  both  real  and  personal  estate.  [Balance  of  petition 
same  as  form  No.  24,  except  prayer  should  be  for  appointment  of  some 
designated  person  as  administrator  with  the  will  annexed,  if  the 
executor  named  is  a  minor  during  his  minority.] 

[For  notice  of  hearing,  see  Form  No.  25.] 

Form  No.  50. 

ORDER  ADMITTING  WILL   TO  PROBATE,  AND  FOR  APPOINT- 
MENT OF  ADMINISTRATOR  WITH  THE  WILL  ANNEXED. 

[Follow  Form  No.  28  to*,  then  say  that]  L.  M.,  who  is  named  as 
executor  in  said  will,  has  renounced  the  trust  [is  a  minor  of  the  age  of 

years;  is  not  a  suitable  and  competent  person  to  administer  said 

estate;  is  dead],  and  that  E.  F.  is  a  suitable  and  competent  person  to 
administer  said  estate  [during  the  minority  of  said  L.  M.],  it  is  there- 
fore considered  by  me  that  the  said  last  will  and  testament  was  duly 

(199) 


§  131  PROBATE    AND   ADMINISTRATION.         [Chap.  11 

executed,  and  the  same  is  genuine  and  valid,  and  that  the  said  last  will 
and  testament  be  admitted  to  probate  and  established  as  a  will  of  real 
and  personal  estate.  It  is  further  ordered  that  letters  of  administration 
with  the  will  annexed  issue  to  said  E.  F.  upon  his  giving  bond  and  tak- 
ing the  oath  required  by  law,  the  trust  thereby  conferred  upon  said  E.  F. 
to  terminate  with  the  minority  of  said  executor. 

(Signed)     J.  K., 
County  Judge. 

[For  bond  of  administrator  with  the  will  annexed,  see  Forms  Nos.  46, 
47,  pages  190,  195.] 

Form  No.  51. 

ORDER  FOR  APPOINTMENT  OF  ADMINISTRATOR  C.  T.  A.  ON 
ACCOUNT  OF  FAILURE  OF  EXECUTOR  NAMED  TO  GIVE 
BOND. 

[Title  of  Cause  and  Court.] 

Now  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  C.  B.  for  her  appointment  as  administrator 
with  the  will  annexed  of  A.  B.,  on  account  of  the  failure  of  C.  D.,  the 
executor  therein  named,  to  give  bond.  C.  B.  appeared  in  person  and  by 
H.  C.  M.,  her  attorney.  G.  H.  was  sworn  and  testified. 

It  appearing  to  the  court  that  said  C.  D.  has  neglected  and  refused 
for  twenty  days  to  give  bond  as  executor  of  said  estate,  as  directed  by 

order  of  said  court  heretofore,  to  wit,  ,  19 — ,  made  and  recorded, 

and  that  C.  B.,  the  widow  of  said  A.  B.,  is  a  suitable  and  competent 
person,  it  is  ordered  that  letters  of  administration  with  the  will  annexed 

issue  to  said  C.  B.  upon  her  giving  bond  in  the  sum  of  $ and 

taking  the  oath  of  office. 

(Signed)     J.  K., 
County  Judge. 

Form  No.  52. 
LETTERS  OF  ADMINISTRATION  WITH  THE  WILL  ANNEXED. 

[Title  of  Cause  and  Court.] 

To  C.  D.,  of  said  County,  Greeting: 

Whereas  A.  B.  lately  departed  this  life  testate,  being  at  or  immedi- 
ately previous  to  his  death  an  inhabitant  of  said  county  of  ,  and 

having  while  he  lived  and  at  the  time  of  his  decease  estate  within  the 
said  county  of  to  be  administered; 

(200) 


Chap.  11]  LETTERS    TESTAMENTARY.  §  131 

And  whereas  at  a  session  of  said  court  held  at  the  county  seat  of  said 

county  on  the day  of  ,  19 — ,  the  last  will  and  testament 

of  said  A.  B.  was  duly  proven  and  allowed,  and  wherein  E.  F.  was 
appointed  executor  of  said  estate; 

And  whereas  said  E.  F.  has  neglected  and  refused  for  more  than  twenty 

days  from  said  day  of  ,  19 — ,  to  execute  and  file  in  said 

court  a  bond  in  the  sum  of  dollars,  with  good  and  sufficient 

surety  as  provided  by  the  order  of  said  court  heretofore  made  and 
entered. 

[Balance  as  in  Form  No.  48.] 

(201) 


CHAPTER  XII. 

DETERMINATION  OF  HEIRSHIP  WITHOUT  AD- 
MINISTRATION. 

I  132.  When  Administration  may  be  Dispensed  With. 

133.  Procedure. 

134.  Hearing — Decree. 

135.  Determining  Eight  of  Succession  Without  Administration. 

136.  Petition  for  Decree  Determining  Succession. 

137.  Citation — Hearing. 

138.  Decree  Determining  Succession, 

§  132.    When  administration  may  be  dispensed  with. 

Administration  of  the  estate  of  an  intestate  which 
is  wholly  exempt  from  payment  of  his  debts  may  be 
dispensed  with  and  a  decree  obtained  determining  in 
whom  the  estate  vests,  in  the  case  of  both  residents 
and  nonresidents,  by  special  proceedings.1  When  an 
estate  consists  of  real  property  either  wholly  or  par- 
tially, administration  is  the  usual,  proper  and  most 
satisfactory  method  of  determining  the  rights  to  its 
succession. 

In  cases  where  there  are  no  heirs  and  the  property 
consequently  escheats  to  the  state,  though  there  is 
authority  to  the  effect  that  administration  is  unneces- 
sary,2 administration  should  be  had  for  the  purpose 
of  paying  the  debts  and  determining  the  fact  of  there 
being  no  heirs.3  It  is  also  held  that  estates  consisting 
entirely  of  personalty  left  by  an  infant  who  died  so 

1  Kev.  Stats.,  c.  17,  §  92,  [1356]. 

2  Smith  v.  Gentry,  16  Ga.  31. 

3  State  v.  McDonald,  55  Or.  419,  104  Pac.  967;   State  v.  O'Day,  41 
Or.  495,  69  Pac.  542. 

(202)| 


Chap.  12]       HEIRSHIP    WITHOUT    ADMINISTRATION.        §  132 

young  as  to  be  incapable  of  contracting  debts,  pass 
immediately  to  the  parties  designated  by  the  statute 
without  administration.4 

When  all  the  heirs  are  of  full  age  and  competent, 
they  may,  if  they  choose,  settle  the  estate  by  paying 
the  debts  and  dividing  the  property  among  themselves. 
They  are  bound  by  the  settlement  and  there  is  no  cred- 
itor to  complain.5  There  are  a  number  of  objections 
to  such  a  procedure.  It  transmits  no  record  title  to 
real  estate;  the  holder  of  a  chose  in  action  which  he 
took  in  the  division  has  no  power  to  enforce  it,  nor 
can  such  holder  of  a  mortgage  note  execute  a  valid 
release,  as  the  title  to  personalty  of  a  decedent  can 
only  be  traced  through  an  executor  or  administrator.6 

In  cases  where  no  administrator  has  been  appointed 
and  there  are  no  debts,  a  court  of  equity  may  adjust 
mutual  accounts  between  the  parties  and  divide  the 
personal  property  between  them.7 

Estates  the  administration  of  which  may  be  dis- 
pensed with,  and  at  the  same  time  a  good  title  trans- 
mitted to  the  parties  in  whom  they  vest  under  the 
statute,  include  those  consisting  of  a  homestead  not  ex- 
ceeding two  thousand  dollars  in  value  and  exempt  per- 
sonal property,  and  lands  held  by  Indians  under 
federal  patent  free  from  liability  for  their  debts. 

*  McCleary  v.  Menke,  109  111.  294;  Hargroves  v.  Thompson,  31  Miss. 
211. 

5  Taylor  v.  Phillips,  30  Vt.  241;  Brown  v.  Forsche,  63  Mich.  500,  25 
N.  W.  1011;  Eoberts  v.  Messinger,  134  Pa.  299;  Amis  v.  Cameron,  54 
Ga.  449. 

«  Sections  193,  204,  post. 

7  Eobertson  v.  Robertson,  120  Ind.  333,  22  N.  E.  310;  Watson  v.  Byrd, 
53  Miss.  480 ;  Marshall  v.  Grow's  Admr.,  29  Ala.  278. 

(203) 


§  133  PROBATE    AND   ADMINISTRATION.         [Chap.  12 

No  procedure  is  provided  by  the  Oregon  statutes  for 
dispensing  with  administration  and  determining  heir- 
ship  without  the  appointment  of  an  administrator. 

§  133.    Procedure, 

Any  person  may  file  a  verified  petition  in  the  county 
court  of  the  county  in  which  the  estate  is  situated,  giv- 
ing the  names,  ages  and  residence  of  the  heirs  at  law 
of  the  deceased,  a  description  of  the  property,  and  a 
showing  that  the  same  is  wholly  exempt  from  attach- 
ment, execution  or  other  mesne  process,  and  is  not 
liable  for  the  payment  of  the  debts  of  the  decedent, 
and  praying  for  an  order  or  decree  dispensing  with 
administration  and  a  determination  of  heirship. 

The  court  thereupon  enters  an  order  fixing  the  time 
and  place  for  hearing  on  said  petition,  which  must  be 
not  later  than  thirty  days  from  its  date,  and  notice  is 
given  to  all  persons  interested  by  publication  of  the 
order  for  three  weeks  in  a  legal  newspaper  of  said 
county.8 

Form  No.  53. 

PETITION    FOB    DISPENSING    WITH    ADMINISTEATION    AND 
DETERMINATION  OF  HEIRSHIP. 

[Title  of  Cause  and  Court.] 
Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that  one, 

A.  B.,  departed  this  life  in  said  county  on  the  day  of  -      — , 

19 — ;  that  he  was  immediately  preceding  his  death  a  resident  and  inhabit- 
ant of  said  county;  that  he  left  him  surviving  a  widow,  C.  B.,  and  the 
following  named  heirs  at  law  [state  names,  residences  and  ages  of  widow 
and  heirs],  that  no  last  will  of  said  decedent  has  been  discovered,  and 
your  petitioner  verily  believes  that  said  A.  B.  died  intestate,  that  said 
A.  B.  died  seised  of  an  estate  of  inheritance  in  the  following  described 
real  estate ,  which  said  real  estate  was  at  the  date  of  his  death 

•  Rev.  Stats.,  c.  17,  5  92,  [1356]. 
(204) 


Chap.  12]       HEIRSHIP    WITHOUT    ADMINISTRATION.        §  134 

occupied  by  himself  and  family  as  and  for  a  homestead  and  is  wholly 
exempt  from  attachment,  execution,  or  other  mesne  process  and  not 
liable  for  the  debts  of  said  deceased  (was  held  by  him  under  the  terms 
of  a  patent  issued  to  him  by  the  United  States  of  America  by  virtue 
of  the  terms  of  which,  and  of  the  act  of  Congress  under  which  the 
name  was  granted,  said  lands  were  at  the  date  of  the  death  of  said 
A.  B.,  not  liable  for  any  debts  of  said  decedent).  That  the  personal 
estate  of  said  A.  B.  is  not  liable  for  the  debts  of  said  estate. 

Your  petitioner  therefore  prays  that  an  order  may  be  made  fixing  a 
time  and  place  for  hearing  on  this  petition,  that  notice  thereof  be  given 
in  the  manner  provided  by  law,  and  that  upon  said  hearing  a  decree  may 
be  entered  dispensing  with  administration  of  said  estate  and  determining 
who  are  the  heirs  of  said  A.  B. 

Dated  this day  of ,  19 — . 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  54. 
ORDER  FOR  HEARING. 

[Title  of  Cause  and  Court.] 

To  all  persons  interested  in  the  estate  of  A.  B.,  deceased: 

C.  D.  having  filed  his  petition,  under  oath,  in  this  court,  praying  that 
admin;stration  of  the  estate  of  said  A.  B.  be  dispensed  with  and  for  a 
decree  determining  who  are  the  heirs  of  said  A.  B.;  it  is  ordered  that 
a  hearing  be  had  on  said  petition  at  the  county  courtroom  in  said  county 

on  the  day  of  ,  19 — ,  at  the  hour  of  —  A.  M.,  and  that 

notice  of  the  time  and  place  fixed  for  said  hearing  be  given  to  all 
persons  interested  in  said  estate  by  publication  of  this  order  for  thirty 
days  in  the  —  — ,  a  newspaper  printed  and  published  in  said  county. 

Dated  this day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

§  134.    Hearing — Decree. 

The  evidence  on  the  hearing  must  be  reduced  to  writ- 
ing and  filed  with  the  other  papers.  Any  person  inter- 
ested may  appear  and  contest  the  allegations  of  the 
petition,  and,  if  it  appears  that  the  assets  are  liable 
for  the  debts,  regular  administration  must  be  had.  If 

(205) 


§  134  PROBATE   AND   ADMINISTRATION.         [Chap.  12 

the  allegations  are  sustained,  a  finding  of  fact  must 
be  made  setting  out  specifically  the  name  of  the  dece- 
dent, date  of  his  death,  the  fact  of  his  intestacy,  the 
names  of  all  his  heirs  at  law,  a  correct  description 
of  his  property  and  the  character  thereof,  and  a  decree 
thereupon  entered  naming  the  sole  heirs  at  law  and 
giving  their  ages  and  residences,  which  decree  is  con- 
clusive upon  the  heirs  and  all  persons  interested.9 

On  applications  for  dispensing  with  administration 
of  the  estates  of  Indians,  the  court  should  always  ap- 
point a  guardian  ad  litem  for  the  minor  heirs  on 
account  of  the  many  complicated  questions  arising 
over  Indian  marriages  and  consequent  heirship. 

Any  of  the  proceedings  under  the  act  dispensing 
with  administration  may  be  reviewed  or  appealed  the 
same  as  in  regular  administration.10 

Form  No.  55. 
OBDEE  DISPENSING  WITH  ADMINISTRATION. 

[Title  of  Cause  and  Court.] 

Now  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  C.  D.  for  a  decree  dispensing  with  admin- 
istration of  the  estate  of  said  A.  B.  and  for  determination  of  heirship, 
and  the  evidence  which  was  reduced  to  writing  and  now  on  file  in  said 
court  was  submitted  to  the  court. 

Upon  consideration  whereof  the  court  finds  that  notice  of  the  time 
and  place  fixed  for  the  hearing  on  said  petition  has  been  given  by 

publication  thereof  for  thirty  days  in  the  ,  as  ordered  by  the 

court,  that  said  A.  B.  died  at in  said  county  on  the day 

of  ,  that  said  A.  B.  died  intestate,  that  the  following  named 

persons  are  the  sole  heirs  at  law  of  said  A.  B.  [give  names,  ages,  resi- 
dences and  relationships  of  each  heir],  that  said  A.  B.  died  seised  of 
an  estate  of  inheritance  in  the  following  described  real  estate , 

•  Eev.  Stats.,  c.  17,  §§  93-95,  [1357],  [1358],  [1359]. 
10  E«v.  Stats.,  c.  17,  §  96,  [1360]. 

(206) 


Chap.  12]       HEIRSHIP    WITHOUT    ADMINISTRATION.        §  136 

that  said  real  estate  was  at  the  date  of  the  death  of  said  A.  B.  occu- 
pied by  himself  and  his  family  as  a  homestead  and  does  not  exceed 
in  value  two  thousand  dollars,  that  the  said  A.  B.  died  possessed  of 
personal  property  consisting  of  household  furniture  of  the  value  of 
not  to  exceed  one  hundred  dollars,  and  that  both  the  real  and  personal 
estate  of  said  A.  B.  are  not  liable  for  the  payment  of  any  of  the  debts 
of  his  said  estate  and  pass  to  the  heirs  at  law  free  from  all  liens  and 
encumbrances  save  and  except  such  as  existed  thereon  prior  to  and 
at  the  date  of  the  death  of  said  A.  B. 

It  is  therefore  considered  and  adjudged  by  me  that  administration 
of  said  estate  be  dispensed  with  and  said  estate  be  awarded  to  the 
following  named  persons:  The  sole  heirs  at  law  of  said  A.  B.,  as  ten- 
ants in  common;  to  C.  B.,  a  son  of  said  A.  B.,  of  the  age  of  

years  and  residing  at ,  Nebraska;  the  undivided  one part 

thereof,  etc. 

(Signed)     J.  K., 
County  Judge. 

§  135.    Determining  right  of  succession  without  ad- 
ministration. 

A  special  proceeding  is  provided  by  statute  for  de- 
termining the  right  of  succession  to  real  estate  when 
the  decedent  has  been  dead  two  years,  left  no  will, 
and  no  debts  payable  to  residents  of  this  state,  and  no 
county  court  of  this  state  has  acquired  jurisdiction  of 
his  estate  for  purposes  of  administration.  It  binds  no 
one  except  heirs  and  parties  who  appear,  and  does 
not  bar  administration  of  the  estate  in  legal  form, 
and  though  providing  for  the  issue  of  a  citation,  does 
not  direct  how  it  shall  be  served.11 

§  136.    Petition  for  decree  determining  succession. 

The  county  court  of  the  county  in  which  the  dece- 
dent last  resided,  or  if  a  nonresident,  of  the  county 
within  which  the  land,  or  a  part  of  it,  is  situated,  ac- 

11  Rev.  Stats.,  c.  17,  §§  272,  273,  [1536],  [1537]. 

(207) 


§  137  PROBATE    AND   ADMINISTRATION.         [Chap.  12 

quires  jurisdiction  by  the  filing  of  a  petition,  which 
may  be  made  by  an  heir  or  person  claiming  by  or 
through  an  heir.  It  must  set  out  the  residence  of  the 
decedent,  date  of  his  death,  that  he  was  intestate,  that 
no  county  court  of  this  state  has  acquired  jurisdiction 
of  his  estate,  give  a  particular  description  of  his  prop- 
erty, and  the  interest  of  the  petitioner,  and  the  interest 
or  share  of  each  heir  according  to  his  relationship  to 
the  deceased,  and  pray  for  a  decree  determining  the 
right  of  succession  to  the  property.12  The  statute  does 
not  require  it  to  be  verified. 

Form  No.  56. 

PETITION  FOB  DECEEE  DETERMINING  SUCCESSION  TO  EEAL 

ESTATE. 
[Title  of  Cause  and  Court.] 

Comes  now  C.  D.  and  respectfully  represents  unto  the  court  that 

heretofore,  to  wit, ,  19 — ,  said  A.  B.  departed  this  life  at  —      — ; 

that  he  was  at  the  date  of  his  death  the  owner  of  the  following  de- 
scribed real  estate  situated  in  the  said  county  of  and  state  of 

Nebraska:  ;  that  said  A.  B.  died  intestate  and  that  no  proceedings 

have  been  had  in  any  county  in  this  state  for  the  administration  of  this 
estate,  and  that  there  are  no  debts  of  decedent  payable  to  residents  of 
this  state. 

That  said  A.  B.  left  him  surviving  the  following  named  heirs  at  law: 

C.  D.,  said  petitioner,  who  is  a  son  of  said  A.  B.,  and  resides  at , 

and  E.  F.  and  G.  H.,  sons  of  said  A.  B.,  who  reside  at ,  that  your 

petitioner  has  purchased  the  interest  of  said  E.  F.  and  G.  H.  in  said 
real  estate  and  is  now  the  owner  in  fee  of  the  said  property. 

Your  petitioner  therefore  prays  that  a  decree  of  said  court  may  be 
made  and  entered  determining  the  right  of  succession  to  said  above- 
described  real  estate. 

(Signed)     C.  D. 

§  137.    Citation— Hearing. 

Upon  the  presentation  of  the  petition  a  citation 
issues  to  all  the  heirs.  The  service  appears  to  be  left 

12  Rev.  Stats.,  c.  17,  §  372,  [1536]. 
(208) 


Chap.  12]       HEIRSHIP    WITHOUT    ADMINISTRATION.        §  138 

to  the  discretion  of  the  court.  The  statute  does  not 
mention  it.13  It  ought  to  be  served  personally  on  all 
heirs  within  the  state,  and  on  nonresidents  by  publica- 
tion for  at  least  thirty  days  unless  service  is  waived. 
Some  form  of  service  must  be  had,  for  it  is  elementary 
that  a  party  cannot  be  deprived  of  valuable  rights 
without  some  kind  of  notice. 

Any  person  interested  may  appear  and  answer  the 
petition,  setting  up  any  valid  defense  or  any  right,  in- 
terest or  claim  in  the  property.  "The  allegations  of 
the  petition  must  be  established  by  competent  testi- 
mony before  a  decree  can  be  entered,  although  no  issue 
be  joined  by  the  answer."14 

§  138.    Decree  determining  succession. 

If  the  facts  set  out  in  the  petition  are  established  to 
the  satisfaction  of  the  court,  a  decree  is  entered  speci- 
fying who  are  the  heirs  of  the  decedent  and  what  are 
the  interests  or  shares  of  the  parties,  respectively,  in 
the  property,  and  declaring  the  succession  accord- 
ingly.15 There  is  no  regulation  for  an  appeal  from  the 
decree  to  the  district  court,  and  the  remedy  of  a  party 
aggrieved  would  be  clearly  by  administration  proceed- 
ings, or  bill  in  equity,  to  establish  his  interests,  en- 
tirely disregarding  the  proceeding.  Dispensing  with 
administration  in  the  manner  above  described  may  be 
desirable  in  some  cases,  but  does  not  clear  up  a  title 
like  a  legal  administration. 

13  Rev.  Stats.,  c.  17,  §  272,  [1537]. 

n  Rev.  Stats.,  c.  17,  §  273,  [1538]. 

15  Rev.  Stats.,  c.  17,  §  275,  [1538]. 

14— Pro.  Ad.  (209) 


CHAPTER  XIII. 

APPOINTMENT  OF  ADMINISTRATORS. 

§  139.  Administration — Definitions. 

140.  When  Administrator  Appointed — Eesident  Estates. 

141.  Who  is  Capable  of  Administering  an  Estate. 

142.  Who  Entitled  to  the  Appointment. 

143.  Next  of  Kin. 

144.  Eight  of  Creditor  to  Administer. 

145.  Administration  oJ  Estates  of  Nonresidents. 

146.  Appointment  of  Administrator  When  Assets  Consist  of  Cause 

of  Action  for  Death  of  Decedent. 

147.  Petition  for  Appointment. 

148.  Notice  of  Hearing. 

149.  Hearing  on  Petition  for  Letters. 

150.  Hearing — Selection  of  Administrator. 

151.  Order  Granting  Letters. 

152.  Bond  of  Administrator. 

153.  Oath  of  Administrator. 

154.  Letters  of  Administration  cannot  be  Attacked  Collaterally. 

§  139.    Administration — Definitions. 

Administration  of  an  estate  is  the  collection  and 
management  of  its  assets,  and  their  application  accord- 
ing to  law  in  payment  of  debts  and  in  distribution  to 
the  parties  entitled  thereto.1  Its  object  and  purposes 
are  to  pay  the  debts  of  the  decedent,  distribute  the 
personal  assets  of  his  estate,  determine  who  the  par- 
ties are  who  take  the  real  estate  and  the  share  to  which 
each  is  entitled  by  virtue  of  heirship  or  marriage. 

An  administrator  is  a  person  appointed  by  a  court 
of  competent  jurisdiction  to  settle  and  adjust  the  estate 
of  one  dying  intestate,  or  such  estates  as  have  no  com- 

1  Bouvier's  Law  Diet.;  Herndon  v.  Moore,  18  S.  C.  339. 
(210), 


Chap.  13]       APPOINTMENT    OF    ADMINISTRATORS.  §  140 

petent  executor  appointed  by  the  testator.     His  title 
rests  solely  upon  the  grant  of  letters.2 

§  140.    When  administrator  appointed. 

There  is  no  statute  in  Nebraska,  or  common-law 
rule,  limiting  the  time  within  which  an  administrator 
of  an  estate  may  be  appointed,  except  when  the  appli- 
cation is  made  by  a  creditor,  in  which  case  letters  must 
issue  within  two  years  from  the  date  of  the  death  of 
the  decedent.3 

In  Oregon  there  is  no  statutory  limitation. 

There  may  be  special  reasons,  such  as  the  discovery 
of  personal  property,  or  completing  the  chain  of  title 
to  real  estate,  which  would  make  administration  neces- 
sary after  all  the  claims  against  the  estate  were  barred 
by  the  statute  of  limitations.4 

The  county  court  of  the  county  of  which  decedent 
was  a  resident  at  the  date  of  his  death,  if  a  resident  of 
this  state,  has  original  jurisdiction  of  the  administra- 
tion of  his  estate,  the  rule  being  the  same  as  in  case 
of  the  probate  of  wills,5  and  such  jurisdiction  is  ex- 
clusive.6 

A  man  is  presumed  to  be  dead  and  his  property  sub- 
ject to  administration7  when  he  has  been  absent  from 
his  residence  and  nothing  can  be  heard  of  him  for 

2  2  Bl.  Com.  503,  505. 

3  National  Bank  of  Superior  v.  Bradshaw,  91  Neb.  714,  136  N.  W. 
1015. 

*  Todhunter  v.  Stewart,  39  Ohio  St.  181. 
5  Rev.  Stats.,  c.  17,  §  74,  [1338];  L.  O.  L.,  §§  1150,  1141. 
«  Slate's  Estate,  40  Or.  352,  68  Pac.  399. 

7  Jochumsen  v.  Savings  Bank,  3  Allen  (Mass.),  87;  Devlin  v.  Com- 
monwealth, 101  Pa.  273. 

(211) 


§  141  PROBATE    AND   ADMINISTRATION.         [Chap.  13 

seven  years,8  and  there  are  cases  in  which  death  will  be 
presumed  when  the  circumstances  clearly  show  that 
the  party  must  have  died  at  the  time  of  his  disappear- 
ance.9 When  the  application  is  made  in  disappearance 
cases  the  petitioner  should  set  out  and  prove  the  cir- 
cumstances connected  with  his  disappearance  and  the 
efforts  made  to  locate  the  party.  Absence  alone  does 
not  raise  a  conclusive  presumption.10 

§  141.    Who  is  capable  of  administering  an  estate. 

The  law  shows  more  care  in  examining  into  the  qual- 
ifications of  an  administrator  than  of  an  executor. 
This  is  because  the  court  presumes  that  the  testator 
knew  the  character  and  business  capacity  of  the  per- 
son he  designated  to  administer  his  affairs,  and  ap- 
pointed him  because  he  had  confidence  in  him.  It  is 
a  general  rule  that  all  persons  who  are  incapable  of 
being  executors  are  also  incapable  of  being  adminis- 
trators. In  all  cases,  in  making  the  appointment,  the 
suitableness  or  competency  of  the  person  whose  ap- 
pointment is  sought  should  be  considered  by  the  court. 
A  minor  is  incompetent,  as  is  also  a  person  of  depraved 
moral  character,  an  habitual  drunkard,  a  professional 
gambler,  a  male  or  female  inmate  of  a  house  of  prosti- 
tution, and  a  person  of  disreputable  character  gener- 
ally. It  makes  no  difference  if  the  heirs  and  dis- 
tributees are  of  the  same  class  of  people  as  the  person 

8  Thomas  v.  Thomas,  16  Neb.  555,  20  N.  W.  846;  Cox  v.  Ellsworth, 
18  Neb.  669,  25  N.  W.  460;  Mitchell  v.  Kaufman  (Neb.),  145  N.  W. 
247. 

»  Coe  v.  Knights  and  Ladies  of  Security  (Neb.),  147  N.  \V.  112. 

10  Magness  v.  Modern  Woodmen  of  America,  146  Iowa,  1,  123  N.  W. 
169. 

(212) 


Chap.  13]       APPOINTMENT    OF    ADMINISTRATORS.  §  141 

whose  appointment  is  sought,  and  the  intestate  of  the 
same  class,  the  courts  will  see  that  the  estate  is  admin- 
istered by  a  competent  reputable  person.11  A  bitter 
enemy  of  one  or  more  of  the  heirs  is  not  a  proper  per- 
son to  receive  the  appointment;12  nor  is  a  person  who 
has  heavy  claims  or  demands  against  the  estate,  which 
would  tend  to  conflict  with  his  official  duties.13  In- 
debtedness to  the  estate  is  not  of  itself  sufficient  reason 
to  withhold  an  appointment;  but  if  the  person  whose 
appointment  is  sought  was  very  heavily  indebted  to 
the  decedent,  it  would  be  more  satisfactory  to  all  par- 
ties that  some  other  person,  not  having  any  personal 
interest  at  stake,  should  receive  the  letters.14 

Personal  unsuitableness  is  never  overcome  by  the 
fact  that  the  applicant  is  a  person  of  great  wealth,  of 
good  character  and  standing,  and  fully  able  to  give 
ample  security  for  the  performance  of  the  trust.15 
The  issue  of  letters  of  administration  by  a  county 
judge  to  his  own  son  is  not  void.16 

In  Oregon,  a  nonresident,  judicial  officers,  except  jus- 
tices of  the  peace,  minors,  persons  of  unsound  mind, 
or  who  have  been  convicted  of  a  felony  or  misdemeanor 
involving  moral  turpitude,  are  disqualified.17 

11  Emerson  v.  Bowers,  14  N.  Y.  449;  McMahon  v.  Harrison,  6  N.  Y. 
443;    Plaisance's   Estate,   Myr.   Prob.    (Cal.)    117;    Coraw   v.    Mowatt, 

2  Edw.  Ch.  (N.  Y.)  57. 

12  Pickering  v.  Pendexter,  46  N.  H.  69;  Pike's  Estate,  45  Wis.  391; 
Drews'  Appeals,  58  N.  H.  319;  Bridgman  v.  Bridgman,  30  W.  Va.  212, 

3  S.  E.  580. 

is  Wright  v.  Wright,  72  Ind.  49;  State  v.  Reinhardt,  31  Mo.  95; 
Thayer  v.  Homer,  11  Met.  (Mass.)  104. 

14  Succession  of  Chaler,  39  La.  Ann.  308,  1  South.  820;  Territory  v. 
Valdez,  1  N.  M.  539. 

15  Stearns  v.  Fiske,  IS  Pick.  (Mass.)  24. 

16  Plowman  v.  Henderson,  59  Ala.  559. 

17  L.  0.  L.,  §  1173. 

(213) 


§  142  PROBATE    AND    ADMINISTRATION.         [Chap.  13 

Nonresidence  is  not,  in  Nebraska,  an  absolute  dis- 
qualification, but  a  matter  to  be  considered  by  the  court, 
the  same  as  in  the  case  of  an  executor,  in  determining 
the  fitness  of  the  appointment,18  and  as  between  persons 
between  whom  the  right  of  preference  is  equal,  the 
resident  should  receive  the  appointment  in  preference 
to  a  nonresident.19  An  alien  is  capable  of  holding  the 
appointment,  as  is  also  a  corporation  or  a  married 
woman.20 

§  142.    Who  entitled  to  the  appointment. 

"Administration  of  the  estate  of  a  person  dying  in- 
testate shall  be  granted  to  some  one  or  more  of  the 
persons  hereinafter  mentioned,  and  they  shall  be  re- 
spectively entitled  to  the  same  in  the  following  order: 

"First.  The  widow  or  next  of  kin,  or  both,  as  the 
county  judge  may  think  proper,  or  such  person  as  the 
widow  or  next  of  kin  may  think  proper  and  request  to 
have  appointed,  if  suitable  and  competent  to  discharge 
the  trust. 

"Second.  If  the  widow  or  next  of  kin  or  the  person 
selected  by  them  shall  be  unsuitable  or  incompetent, 
or  if  the  widow  or  next  of  kin  shall  neglect  for  thirty 
days  after  the  death  of  the  intestate  to  apply  for  ad- 
ministration or  to  request  that  administration  be 
granted  to  some  other  person,  the  same  may  be  granted 
to  one  or  more  of  the  principal  creditors,  if  any  such 
are  competent  and  willing  to  take  it. 

18  Hammond  v.  Wood,  15  R.  I.  566,  10  Atl.  623. 

19  Williams  on  Executors,  515;   Bridgman  v.  Bridgman,  30  W.  Va. 
212,  3  S.  E.  580;  Pickering  v.  Pendexter,  46  N.  H.  69. 

20  Guyer's  Estate,  65  Pa.  311. 

(214) 


Chap.  13]       APPOINTMENT    OF    ADMINISTRATORS.  §  142 

"Third.  If  there  be  no  such  creditor  competent 
and  willing  to  take  administration,  the  same  may  be 
committed  to  such  other  person  or  persons  as  the 
county  judge  may  think  proper."21 

A  husband  is  always  entitled  to  administer  the  estate 
of  his  deceased  wife,22  subject,  however,  to  the  usual 
rule  of  competency.23  His  right  is  defeated  by  divorce 
or  agreement  made  during  her  lifetime.24 

A  widow  is  usually  given  preference  over  the  next 
of  kin  though  she  ranks  with  them,25  and  some  courts 
have  favored  her  so  strongly  as  to  hold  that  her  illiter- 
acy or  poverty  should  not  deprive  her  of  such  right 
if  she  was  otherwise  a  suitable  person.26 

Any  party  entitled  to  the  appointment  may  nomi- 
nate a  trust  company  empowered  by  its  articles  of 
incorporation  to  act  as  administrator  of  an  estate 
within  the  county  where  it  has  its  principal  office.27 

In  Oregon  such  company  may  act  anywhere  in  the 
state.28 

If  the  widow  or  next  of  kin  fail  to  make  their  ap- 
plication for  thirty  days,  they  lose  their  right  of 
preference.29 

21  Rev.  Stats.,  c.  17,  §  75,  [1339];  L.  O.  L.,  §  1150. 

22  Ozmun  v.  Galbraith,  131  Mich.  577,  92  N.  W.  101;  L.  O.  L.,  §  1152. 
In  Oregon  his  application  must  be  made  within  thirty  days,  unless  a 
marriage  settlement  or  other  testamentary  disposition  of  her  property 
makes  it  necessary  that  some  other  person  be  appointed. 

23  Section  141,  supra. 

24  2  Bishop,  Marriage  and  Divorce,  5  725. 

25  Atkinson  v.  Heasty,  21  Neb.  663,  33  N.  W.  206;  O'Brien's  Estate, 
63  Iowa.  622,  19  N.  W.  797. 

2«  Bowersox's  Appeal,  100  Pa.  434. 

27  Rev.  Stats.,  c.  14,  §  195,  [743]. 

28  Laws  1913,  p.  722. 

29  Spencer  v.  Wolf,  49  Neb.  8,  67  N.  W.  859;  In  re  Miller,  32  Neb. 
480,  49  N.  W.  427;  L.  O.  L.,  §  1151. 

(215) 


§§  143,  144      PROBATE   AND   ADMINISTRATION.          [Chap.  13 

§  143.    Next  of  kin. 

The  term  "next  of  kin"  means  nearest  blood  rela- 
tions, and  embraces  none  not  included  in  the  statutes 
of  distribution  and  descent,  those  who  take  the  estate 
by  inheritance.30  It  includes  and  is  limited  to  those 
persons  to  whom  at  common  law  administration  of 
estates  could  be  granted  in  case  of  intestacy.31 

An  illegitimate  child  is  next  of  kin  of  his  mother,32 
and  of  his  father,  provided  the  latter  has  acknowl- 
edged him  in  the  manner  provided  by  statute.33 

§  144.    Right  of  creditor  to  administer. 

A  creditor  has  no  right  of  preference  to  be  appointed 
administrator  of  the  estate  of  his  debtor,  unless  the 
widow  or  next  of  kin  neglect  to  make  application 
within  thirty  days  from  the  death  of  decedent.34 

In  Oregon,  if  the  widow  or  next  of  kin  neglect  to 
apply  for  administration  within  the  thirty  days  and  a 
creditor  apply  within  ten  days  thereafter,  the  county 
judge  may,  in  his  discretion,  direct  that  a  citation  issue 
to  them  if  they  reside  in  the  county,  requiring  them 
to  apply  for  or  renounce  their  right,  and  if  they  fail 
to  apply  within  forty  days  from  the  death  of  the 
decedent,  they  are  deemed  to  have  renounced  their 
rights.35 

30  Perry  v.  Scaife,  126  Wis.  405,  105  N.  W.  120.     See,  also,  Tables 
of  Next  of  Kin. 

31  2  Bouvier's  Law  Diet.;  Warren  v.  Englehart,   13  Neb.  284,  13 
N.  W.  401. 

32  Rev.  Stats.,  c.  10,   [1274];  L.  O.  L.,  §  7351. 

33  Rev.  Stats.,  c.  17,  §9,  [1273];  In  re  Pico's  Estate,  56  Cal.  413. 
Sections  437,  438,  post. 

34  Atkinson  v.  Hasty,  21  Neb.  663,  33  N.  W.  206. 

35  L.  O.  L.,  §  1151;  Ramp  v.  McDaniel,  12  Or.  115,  6  Pac.  456;  Cusick 
v.  Hammer,  25  Or.  473,  36  Pac.  525. 

(216) 


Chap.  13]       APPOINTMENT    OF    ADMINISTRATORS.  §  145 

He  must  be  a  party  who  at  the  date  of  the  death  of 
the  decedent  was  the  owner  of  a  bona  fide  demand  then 
due  or  becoming  due  thereafter.  He  acquires  no 
rights  by  purchasing  a  claim  against  the  estate.36  The 
question  as  to  who  is  a  principal  creditor  is  for  the 
court  to  determine.37 

§  145.    Administration  of  estates  of  nonresidents. 

If  a  nonresident  of  this  state  die  leaving  an  estate 
to  be  administered  in  this  state,  administration  thereof 
shall  be  granted  by  the  county  court  of  any  county  in 
which  there  shall  be  an  estate  to  be  administered,  and 
the  administration  first  legally  granted  shall  extend 
to  all  the  assets  of  the  estate  within  this  state,  and 
shall  exclude  the  jurisdiction  of  the  county  court  of 
every  other  county.38  The  statute  has  fixed  no  limita- 
tion upon  the  size  of  the  estate  to  be  administered,  and 
the  courts  have  no  right  to  do  so.  Jurisdiction  is  not 
determined  by  the  value  of  the  estate.39  In  the  Brad- 
ley case,  the  estate  consisted  of  a  pocketbook  contain- 
ing four  dollars  in  money,  a  suit  of  clothes  worn  by 
the  intestate  at  the  time  of  his  death,  an  account 
against  a  party  for  twenty-five  dollars,  and  a  claim 
against  the  Missouri  Pacific  Railway  Company  for 
injuries  which  caused  his  death.  In  Horton  v.  Trom- 

38  Lentz  v.  Pilert,  60  Md.  296;  Wilkinson  v.  Conarty,  65  Mich.  614, 
32  N.  W.  841. 

37  Atkinson  v.  Hasty,  21  Neb.  663,  33  N.  W.  206;  Cusick  v.  Hammer, 
25  Or.  472,  36  Pac.  525. 

38  Comp.  Stats.,  c.  23,  §  177;  Spencer  v.  Wolfe,  49  Neb.  8,  67  N.  W. 
858;  Missouri  Pac.  Ey.  Co.  v.  Bradley,  51  Neb.  596,  71  N.  W.  283. 

39  Missouri  Pac.  By.  Co.  v.  Bradley,  51  Neb.  596,  71  N.  W.  283; 
Ctty  of  Horton  v.  Trompeter,  53  Kan.  150,  35  Pac.  1106;  Union  Pac. 
Ey.  Co.  v.  Dunden,  37  Kan.  1,  14  Pac.  501. 

(217) 


§  146  PROBATE   AND   ADMINISTBATION.         [Chap.  13 

peter  the  assets  consisted  of  two  dollars  and  twenty- 
five  cents  in  cash,  and  a  cause  of  action  for  injuries 
which  resulted  in  death.  The  removal  of  the  prop- 
erty to  another  state  before  the  hearing  on  the  appli- 
cation for  appointment  does  not  deprive  the  court  of 
jurisdiction.  If  the  personalty  was  in  the  county  at 
the  time  of  his  death,  it  vested  in  the  administrator, 
when  appointed,  by  relation  from  the  death  of  the  in- 
testate, and  the  fact  that  it  was  removed  to  another 
state  is  immaterial.40 

Administration  may  be  granted  of  the  estate  of 
either  a  resident  or  nonresident  whose  sole  assets  are 
real  estate.41  The  right  of  preference,  when  de- 
manded, should  be  allowed  the  same  as  in  cases  of 
residents,  and  the  procedure  is  the  same. 

§  146.  Appointment  of  administrator  when  assets 
consist  of  a  cause  of  action  for  death  of  intestate. 
When  the  death  of  the  intestate  was  caused  by  the 
wrongful  act,  neglect  or  default  of  another  party,  and 
a  cause  of  action  would  accrue  therefor  under  the 
statutes,42  this  cause  of  action,  of  itself,  is  such  an  asset 
as  gives  a  county  court  jurisdiction  to  appoint  an 
administrator  to  prosecute  the  same.43  Any  other  rule 
might  prevent  the  enforcement  of  the  provisions  of 
said  act,  and  the  fact  that  the  chapter  gives  such  right 

40  Bradley  v.  Missouri  Pac.  Ey.  Co.,  51  Neb.  653,  71  N.  W.  282. 

41  Moore's  Estate  v.  Moore,  33  Neb.  509,  50  N.  W.  443. 

42  Section  203,  post. 

43  Missouri  Pac.   By.   Co.   v.  Lewis,   24  Neb.   848,  40   N.   W.   401; 
Missouri  Pac.  Ey.  Co.  v.  Bradley,  51  Neb.  596,  71  N.  W.  283;  Pindlay 
v.  Chicago  &  G.  T.  B.  Co.,  106  Mich.  700,  64  N.  W.  732;  Hutchins  v.  St. 
Paul,  M.  &  M.  Ey.  Co.,  44  Minn.  5,  46  N.  W.  79. 

(218) 


Chap.  13]       APPOINTMENT    OF    ADMINISTRATORS.  §  147 

of  action  to  the  personal  representative,  a::d  to  him 
alone,  implies  the  right  to  appoint,  if  necessary,  an 
administrator  to  enforce  it  and  administer  the  pro- 
ceeds in  accordance  with  the  statute.  Although  the 
intestate  may  have  received  the  injuries  which  caused 
his  death,  and  death  itself  occurred  in  another  state, 
such  facts  would  not  deprive  the  county  courts  of  this 
state  of  jurisdiction  to  issue  letters  of  administration.44 

§  147.    Petition  for  appointment. 

The  application  for  appointment  of  an  administra- 
tor must  be  by  petition  to  the  county  court.  It  may 
be  filed  by  anyone  interested  in  the  estate,  such  as 
an  heir,  the  surviving  spouse  or  a  creditor.45  A  county 
to  which  the  decedent  died  indebted  for  taxes  is  not 
a  lawful  petitioner.46  The  petition  is  necessary  to 
give  the  court  jurisdiction.47  It  must  allege  the  death 
of  the  decedent  and  his  residence  at  the  time  thereof;48 
that  he  left  an  estate  to  be  administered,49  or  if  a  non- 
resident of  the  state  that  he  died  seised  of  real  estate 
or  possessed  of  personal  property  within  the  county 
in  which  application  was  made.50  It  should  set  up  the 
names  of  the  widow  and  next  of  kin  and  the  ages  of 

44  Missouri  Pac.  Ry.  Co.  v.  Lewis,  24  Neb.  848,  40  N.  W.  401. 

45  Shipman  v.  Butterfield,  47  Mich.  487,  11  N".  W.  283. 

46  Boaid  of  Commrs.  Dawes  Co.  v.  Furay,  5  Neb.  Unof.  507,  99  N.  W. 
271. 

47  Rev.   Stats.,   c.   17,  §  91,    [1355];   L.   O.  L.,  §  1157;   In   re   Burk's 
Estate,  66  Or.  286,  134  Pac.  12. 

48  Spencer  v.  Wolfe,  49  Neb.  8,  67  N.  W.  858;   Moore's  Estate  v. 
Moore,  33  Neb.  509,  50  N.  W.  443;  Moore  v.  Willamette  C.  Co.,  7  Or. 
359. 

49  Larson  v.  Union  Pacific  R.  R.  Co.,  70  Neb.  261,  97  N.  W.  313. 
M  Spencer  v.  Wolfe,  49  Neb.  8,  67  N.  W.  858. 

(219) 


§  147  PROBATE    AND    ADMINISTRATION.          [Chap.  13 

those,  if  any,  who  are  minors.  A  particular  descrip- 
tion of  the  property  is  not  necessary.51 

When  it  is  filed  more  than  thirty  days  after  the  date 
of  the  death  of  the  intestate,  it  need  not  allege  that 
the  widow  and  next  of  kin  are  unsuitable  or  incompe- 
tent to  discharge  the  trust,  or  that  they  have  failed 
to  petition  for  letters.52  If  filed  more  than  two  years 
after  such  death,  and  the  appointment  of  "some  other 
suitable  person  as  the  court  might  think  proper"  is 
prayed  for,  it  should  allege  that  there  are  no  creditors 
competent  or  willing  to  accept  the  trust.53  It  should 
be  verified  by  the  petitioner,  but  failure  to  do  so  does 
not  deprive  the  court  of  jurisdiction.54 

In  Oregon  verification  is  necessary.55 

Form  No.  57. 
PETITION  FOE  LETTERS  OF  ADMINISTRATION. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  B.,  widow  of  said  A.  B.,  late  of  said  county,  de- 
ceased, respectfully  represents  unto  the  court  that  said  A.  B.  departed 

this  life  at  his  residence  in  said  county  on  the  day  of  , 

19 — ;  that  he  was,  immediately  preceding  his  death,  a  resident  and 
inhabitant  of  said  county,  and  was  possessed  of  real  and  personal 

estate  in  said  county  of  about  the  value  of  dollars  ($ ). 

Your  petitioner  further  shows  that  no  last  will  and  testament  of  said 
A.  B.  has  been  discovered,  nor  is  your  petitioner  aware  of  the  existence 
of  any  such  instrument,  and  your  petitioner  believes  that  said  A.  B. 
died  intestate;  that  said  A.  B.  left,  him  surviving,  a  widow,  your  peti- 
tioner, who  now  resides  at  ,  and  children  as  follows:  [Give 

names  and  ages  of  all  the  children.     If  deceased  left  no  widow  or  chil- 

51  Spencer  v.  Wolfe,  supra. 

52  In  re  Miller,  32  Neb.  489,  49  N.  W.  427. 

53  Atkinson  v.  Hasty,  21  Neb.  663,  33  N.  W.  206. 

54  In  re  Miller,  32  Neb.  480,  49  N.  W.  427. 

55  L.  O.  L.,  §  82. 

(220) 


Chap.  13]       APPOINTMENT   OF    ADMINISTRATOBS.  §  148 

dren  surviving,  give  names,  ages,  if  minors,  and  residences,  as  far  as 
known,  of  his  heirs  at  law.     If  not  known,  so  state.] 

Yo  -.r  petitioner  therefore  prays  that  letters  of  administration  may 
be  granted  to  her  upon  the  goods,  chattels,  rights,  and  credits  of  said 
deceased. 

Dated  this day  of ,  19 — . 

(Signed)     C.  B. 

[Add  verification,  Form  No.  5.] 

§  148.    Notice  of  hearing. 

Upon  the  filing  of  a  petition  containing  the  required 
jurisdictional  allegations,  it  is  the  duty  of  the  court 
to  fix  a  time  and  place  for  hearing  and  give  notice 
thereof.56  Service  of  the  notice  is  made  on  all  per- 
sons interested  the  same  as  on  petition  for  the  pro- 
bate of  wills,  by  publication  in  some  newspaper  of  the 
county  designated  by  the  court  on  the  request  of  the 
petitioner,  or  by  personal  service,  as  the  court  may 
direct.57  The  usual  practice  is  for  the  court  to  make 
a  formal  order  fixing  the  time  and  place  for  hearing, 
and  directing  how  service  shall  be  made.  The  order 
may  constitute  the  notice  and  be  served  as  directed, 
or  notice  prepared  and  served  according  to  such  order. 

If  the  order  is  defective,  but  the  proof  of  publica- 
tion shows  that  the  notice  was  actually  published  as 
the  law  provides,  the  service  is  good.58 

56  Larson  v.  Union  Pacific  R.  R.  Co.,  70  Neb.  261,  97  N.  W.  313. 

57  Rev.  Stats.,  c.  17,  §  91,  [1355]. 

58  Brusha  v.  Hawke,  87  Neb.  254,  126  N.  W.  1079. 

(221) 


§  149  PROBATE    AND    ADMINISTRATION.         [Chap.  13 

Form  No.  58. 

NOTICE  OF  HEAEING  ON  PETITION  FOR  LETTERS  OF  ADMIN- 
ISTRATION. 

[Title  of  Cause  and  Court.] 
To  all  persons  interested  in  said  estate: 

Notice  is  hereby  given  that  at  the  county  courtroom  in  the  city  of 

,  said  county,  on  the day  of ,  19 — ,  at  the  hour  of 

—  A.  M.,  the  following  matter  will  be  heard  and  considered:  The  peti- 
tion of  C.  D.  for  letters  of  administration  upon  the  estate  of  A.  B., 
deceased. 

Dated  this day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

§  149.    Hearing  on  petition  for  letters. 

The  hearing  should  be  held  on  the  date  given  in  the 
notice,  unless  for  good  reason  a  continuance  is  granted. 
Where  the  application  is  neither  heard  nor  postponed, 
the  court  treats  it  as  abandoned.  The  proceedings 
must  be  commenced  again,  the  same  as  though  no  peti- 
tion had  been  filed  or  notice  given.  In  a  case  in  which, 
two  years  after  the  date  set  for  the  hearing,  a  new 
application  was  filed,  which  was  defective  in  sub- 
stance, and  was  acted  upon  by  the  court  at  once,  with- 
out any  notice  being  given,  the  whole  proceeding  was 
treated  as  an  absolute  nullity,  entirely  worthless  for 
administration,  and  the  appointment  as  subject  to  col- 
lateral attack  in  an  action  brought  by  the  adminis- 
trator.69 

The  burden  of  proof  on  the  hearing  is  on  the  peti- 
tioner,60 and  the  following  facts  must  be  established 
by  competent  testimony: 

First.     The  death  of  the  decedent  intestate. 

59  Elgutter  v.  Missouri  Pac.  Ry.  Co.,  53  Neb.  748,  74  N.  W.  255. 
«o  Weeks  v.  Sego,  9  Ga.  199. 

(222) 


Chap.  13]       APPOINTMENT    OF    ADMINISTRATORS.  §  150 

Second.  That  at  the  date  of  his  death  he  was  a 
resident  of  the  county,  and  left  an  estate  to  be  admin- 
istered; or  that  he  was  a  nonresident,  and  left  an 
estate  within  the  county.  The  value  of  the  estate  is 
immaterial.61 

Third.  That  the  party  whose  appointment  is  sought 
is  competent,  whether  entitled  to  preference  or  not.62 

Any  person  having  any  interest  in  the  estate  may 
appear  and  contest  any  of  the  material  allegations  of 
the  petition,  may  object  to  the  appointment  of  the 
proposed  administrator  for  any  sufficient  reason,  and 
set  up  his  own  right  to  the  same.  Such  persons  are 
limited  to  the  widow,  next  of  kin  and  creditors.  A 
debtor  has  no  authority  or  right  to  object  to  the  ap- 
pointment of  any  person  as  administrator  of  his 
creditor.63  Heirs  who  appear  on  the  hearing  waive 
any  right  to  afterward  raise  the  question  of  insuffi- 
cient notice.64 

§  150.    Hearing — Selection  of  administrator. 

The  rule  governing  the  appointment  of  an  adminis- 
trator is  that  the  right  to  administer  upon  an  estate 
should  as  far  as  possible  follow  the  right  of  property 
therein,  thereby  keeping  its  avails  in  the  control  of 
those  entitled  to  share  in  them  under  the  laws  of  dis- 
tribution and  descent.65  At  the  same  time  the  court 
is  not  compelled  to  issue  letters  to  any  of  the  next  of 

«i  Bradley  v.  Missouri  Pae.  Ry.  Co.,  51  Neb.  653,  71  N.  W.  282. 

62  Larson  v.  Union  Pacific  R.  R.  Co.,  70  Neb.  261,  97  N.  W.  313. 

63  Bradley  v.   Missouri  Pac.   Ry.   Co.,  51   Neb.  653,  71  N.  W.  282; 
Chicago,  B.  &  Q.  Ry.  Co.  v.  Gould,  64  Iowa,  343,  20  N.  W.  464. 

64  Spencer  v.  Wolfe,  49  Neb.  8,  67  N.  W.  858. 

65  Goods  of  Gill,  1  Hagg.   Ecc.  341;   Leverett  v.  Dismukes,   10  Ga. 
98;  Hall  v.  Thayer,  105  Mass.  219. 

(223) 


§  150  PROBATE    AND    ADMINISTRATION.         [Chap.  13 

kin  or  their  nominees.  If  he  does  not  find  them  com- 
petent he  may  appoint  an  outside  party.66 

A  common-law  widow  is  entitled  to  letters,  but  if 
her  right  is  questioned,  she  must  prove  her  marriage 
and  competency.  She  cannot  testify  to  conversations 
between  herself  and  the  decedent  constituting  a  verbal 
contract  of  marriage,67  the  opposing  parties  being  rep- 
resentatives of  the  estate  within  the  terms  of  the 
code.68 

In  the  case  of  a  contest  between  two  parties  of  the 
same  degree  of  kinship  to  the  decedent,  the  court  may 
solve  the  problem  by  appointing  the  two  as  coadminis- 
trators,69  and  as  between  an  heir  and  a  nominee  of  an 
heir  not  related  to  the  decedent  by  appointing  the 
nominee.70  The  court  should  be  governed  by  sound 
discretion  rather  than  abstract  rules  of  law  in  appoint- 
ing an  administrator.  His  action  in  making  the  selec- 
tion is  not  subject  to  review  when  he  acted  within  his 
jurisdiction,  unless  it  clearly  appears  that  the  right 
has  been  abused. 

Under  the  Oregon  practice  notice  to  interested  par- 
ties is  not  required.  The  court  acquires  jurisdiction 
by  the  filing  of  a  verified  petition,  and  if  it  appears 
therefrom  that  the  estate  is  one  which  is  subject  to 
administration  in  the  county  and  that  the  applicant 
is  entitled  to  letters,  it  is  the  duty  of  the  court  to  fix 
the  amount  of  the  bond  and  order  the  issue  of  letters. 
There  is  no  time  fixed  by  the  statute  within  which  the 

66  Spencer  v.  Wolfe,  49  Neb.  8,  67  N.  W.  858;  Brown  v.  Harmon, 
76  Neb.  28,  106  N.  W.  1003,  107  N.  W.  1004. 
«7  Sorenson  v.  Sorenson,  56  Neb.  729,  77  N.  W.  68. 

68  Kroh  v.  Heins,  48  Neb.  691,  67  N.  W.  771. 

69  Taylor  v.  Delancey,  2  Caines  Gas.  (N.  Y.)  143. 

70  Brown  v.  Harmon,  76  Neb.  28,  106  N.  W.  1003,  107  N.  W.  1004. 

(224) 


Chap.  13]       APPOINTMENT    OF    ADMINISTRATORS.  §  151 

bond  must  be  filed,  and  as  in  the  case  of  letters  testa- 
mentary, a  reasonable  time  should  be  allowed  for  that 
purpose. 

This  power  should  not  be  used  to  reward  his  friends 
and  relations  or  to  advance  his  social  and  political 
position,  but  exercised  solely  for  the  good  of  the  estate, 
and  so  used  as  will  most  conduce  to  the  highest  good 
of  those  interested  therein.  Other  things  being  equal, 
a  person  of  good  business  capacity  is  preferred,  and 
in  all  cases  one  of  known  integrity  should  be  selected.71 

§  151.    Order  granting  letters. 

The  appointment  of  an  administrator  should  be  pre- 
ceded by  a  finding  of  fact,  and  based  thereon,72  but  if 
it  appears  that  a  proper  petition  was  filed,  and  due 
service  of  the  notice  of  the  same  had, — in  fact,  that 
the  court  had  jurisdiction, — an  appointment  of  an  ad- 
ministrator without  a  proper  finding  to  support  it  is, 
at  most,  merely  erroneous,  and  not  void.73 

Form  No.  59. 
OBDEE  FOE  APPOINTMENT  OF  ADMINISTBATOR. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  C.  B.  for  his  appointment  as  administrator 
of  the  estate  of  A.  B.,  deceased,  and  it  appearing  to  the  court  from  the 
records  and  files  that  notice  of  said  hearing  has  been  given  to  all  per- 

71  Atkinson  v.  Hasty,  21  Neb.  663,  33  N.  W.  206;  Brown  v.  Harmon, 
76  Neb.  28,  106  N.  W.  1003,  107  N.  W.  1004;  Lareon  v.  Union  Pacific 
E.  E.  Co.,  7  Neb.  261,  97  N.  W.  313. 

«  In  re  Miller,  32  Neb.  480,  49  N.  W.  427. 

73  Doty  v.  Sumner,  12  Neb.  378,  11  N.  W.  464;  Lewis  v.  Watrus,  7 
Neb.  477;  Hansen  v.  Bergquist,  9  Neb.  278,  2  N.  W.  858;  In  re  Miller, 
32  Neb.  480,  49  N.  W.  427. 

15— Pro.  Ad.  (225) 


§  152  PROBATE   AND   ADMINISTRATION.         [Chap.  13 

sons  interested  in  said  estate  by  publication  thereof  for  three  weeks 

in  the  ,  a  newspaper  published  in  said  county,  as  ordered  by 

said  court,  C.  B.  and  G.  H.  were  sworn  and  testified.     Upon  considera- 
tion whereof,  the  court  finds  that  A.  B.  departed  this  life  intestate 

on  the  day  of  ,  19 — ;  that  he  was,  at  the  date  of  hia 

death,  a  resident  of  said  county,  and  that  he  left  an  estate  consisting 

of  personalty  of  the  estimated  value  of  $ ;*  that  said  C.  B.  is 

a  son  and  next  of  kin  of  said  A.  B.,  and  is  entitled  to  be  appointed 
administrator  of  said  estate. 

It  is  therefore  ordered  that  letters  of  administration  upon  said  es- 
tate issue  to  said  C.  B.  upon  his  giving  bond  in  the  sum  of  $ . 

and  taking  the  oath  required  by  law. 

(Signed)     J.  K., 
County  Judge. 

If  there  is  a  widow,  and  she  has  waived  her  right  of  preference, 
insert  at  *  that  C.  D.,  widow  of  said  A.  B.,  has  waived  her  preference 
as  administratrix,  and  requested  the  court  to  appoint  her  son,  C.  B.,  as 
administrator.  If  there  are  other  sons,  any  one  of  whom  is  entitled 
to  the  appointment,  the  order  should  show  that  they  consented  to  the 
appointment,  and  the  same  is  true  of  other  next  of  kin  of  the  same 
degree. 

§  152.    Bond  of  administrator. 

An  administrator  must  give  a  bond,  before  entering 
upon  the  discharge  of  his  duties,  in  such  sum  as  the 
county  judge  may  direct,  with  surety  or  sureties  as  he 
may  approve,  with  the  same  conditions  therein  as  is 
required  in  the  case  of  an  executor,  and  with  such 
variations  only  as  may  be  necessary  to  make  it  appli- 
cable to  the  case  of  an  administrator.74  The  amount 
of  the  bond  is  fixed  by  the  court.  It  should  be  large 
enough  to  protect  the  estate  from  loss,  and  should 
never  be  less  than  the  estimated  value  of  the  assets  of 
the  estate,  including  income  from  the  realty,  that  may 
be  at  any  time  in  the  hands  of  the  administrator.75  In 

74  Eev.  Stats.,  c.  17,  §  76,  [1340];  L.  O.  L.,  §  1153. 

75  Normand's  Admr.  v.  Grognard,  17  N.  J.  Eq.  425. 

(226) 


Chap.  13]       APPOINTMENT   OF    ADMINISTRATORS.  §  152 

fixing  the  amount,  the  value  of  the  realty  need  not  be 
taken  into  consideration,  as  the  administrator  cannot 
dispose  of  it,  but  the  income  from  it  should  be.78 

Form  No.  60. 
ADMINISTRATOR'S  BOND. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  as  principal,  and 
-.  as  suret — ,  are  held  and  firmly  bound  unto  the  county  judge 


of  county,  Nebraska,  in  the  penal  sum  of  dollars,  for 

the   payment    of   which   well   and   truly   to   be   made   we   jointly   and 
severally  bind  ourselves. 

Dated  this  day  of ,  19 — . 

Whereas.  has  been  named  in  the  last  will  and  testament  of 

• ,  deceased,  as  executor,  and  has  accepted  said  trust: 


Now,  the  condition  of  this  obligation  is  such  that,  if  the  said 


shall  make  and  return  to  the  county  court  of  said  county,  within 
three  months,  a  true  and  perfect  inventory  of  all  the  goods,  chattels, 
rights,  credits,  and  estate  of  the  deceased  which  shall  come  to  his 
possession  or  knowledge,  or  to  the  possession  of  any  other  person  for 
him;  to  administer  according  to  law  all  the  goods,  chattels,  rights, 
credits,  and  estate  which  shall  at  any  time  come  to  his  possession,  or 
to  the  possession  of  any  other  person  for  him,  and  out  of  the  same 
to  pay  and  discharge  all  debts  and  charges,  or  such  dividends  thereon 
as  shall  be  ordered  dnd  decreed  by  the  county  judge;  to  render  a  true 
and  just  account  of  his  administration  to  the  county  judge  within  one 
year,  and  at  any  other  time  when  required  by  said  court;  and  to  per- 
form all  o.ders  and  decrees  of  the  county  court  by  said  administrator 
to  be  performed  in  the  premises, — then  this  obligation  to  be  null  and 
void;  otherwise  to  be  and  remain  in  full  force  and  effect. 

A.  B, 
Principal. 


Surety. 

When  two  or  more  persons  are  appointed,  a  joint 
bond  with  sureties  or  separate  bonds  may  be  given.77 

76  Ellis  v.  Witty,  63  Miss.  117. 

77  Rev.  Stats.,  c.  17,  §  90,   [1354]. 

(227) 


§  153  PKOBATE   AND   ADMINISTBATION.         [Chap.  13 

The  bond  must  strictly  comply  with  the  terms  of  the 
statute.78 

Under  the  Oregon  practice  the  amount  of  the  bond 
is  fixed  by  the  same  rule  as  that  of  an  executor,  and 
its  amount  can  be  reduced  by  application  to  the  county 
court  and  a  deposit  of  assets  with  a  surety  company 
in  the  same  way.79  It  is  in  the  same  form  as  the  bond 
of  an  executor.80 

§  153.    Oath  of  administrator. 

The  uniform  practice  in  Nebraska  is  to  require  of 
the  administrator  an  oath  of  office  before  entering 
upon  his  duties.  It  has  been  held,  however,  by  the 
federal  court  that  a  failure  to  take  and  file  the  usual 
oath  did  not  deprive  him  of  power  to  discharge  the 
duties  of  his  office.81 

Form  No.  61. 
OATH  OF  ADMINISTRATOR. 

State  of  Nebraska, 

County  of , — ss. 

I  do  solemnly  swear  that  I  will  well  and  truly  administer  all  and 
singular  the  goods,  chattels,  rights,  credits  and  effects  of  A.  B.,  de- 
ceased, and  pay  all  just  claims  and  charges  against  his  estate,  so  far 
as  said  goods,  chattels  and  effects  shall  extend,  and  law  charge  me, 
and  that  I  will  do  and  perform  all  other  acts  required  of  me  by  law 
to  the  best  of  my  knowledge  and  ability.  So  help  me  God. 

C.   D. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

78  Tidball  v.  Young,  56  Neb.  261,  78  N.  W.  507. 

78  L.  O.  L.,  §  1153;  Laws  1913,  p.  726. 

so  See  §  46a. 

81  Leahy  v.  Haworth,  141  Fed.  850. 

(228) 


Chap.  13]       APPOINTMENT   OF    ADMINISTRATORS.  §  153 

Form  No.  62. 

LETTERS  OF  ADMINISTRATION. 
State  of  Nebraska, 
County  of  , — ss. 

The  people  of  the  state  of  Nebraska  to  C.  D.,  of  said  county,  greeting: 
Whereas,  A.  B.,  lately  departed  this  life  intestate,  being  at  or  im- 
mediately previous  to  his  death  an  inhabitant  of  the  county  of , 

in  the  state  of  Nebraska,  and  having,  while  he  lived,  and  at  the  time 

of  his  decease,  estate  within  the  county  of to  be  administered, 

by  means  whereof  the  ordering  and  granting  administration  of  all 
and  singular  the  goods,  chattels,  rights,  credits,  and  estate  whereof 
the  said  deceased  died  possessed  in  the  state  of  Nebraska,  and  also 
the  auditing,  allowing  and  final  discharging  the  account  thereof,  doth 

appertain  unto  said  county  court  for  said  county  of ;  and  being 

desirous  that  the  goods,  chattels,  rights,  credits  and  estate  of  said 
intestate  may  be  well  and  faithfully  administered,  applied  and 
disposed  of,  do  grant  unto  you,  the  said  C.  D.,  full  power,  by  these 
presents,  to  administer  and  faithfully  dispose  of,  according  to  law, 
all  and  singular  the  goods,  chattels,  rights,  credits,  and  estate  of  said 
deceased,  within  the  state  of  Nebraska,  which  shall  at  any  time  come 
to  your  possession,  or  to  the  possession  of  any  other  person  for  you, 
and  to  ask,  gather,  levy,  recover  and  receive  all  the  goods,  chattels, 
rights,  credits  and  estate  whatsoever  of  said  deceased,  which  to  him, 
while  he  lived,  and  at  the  time  of  his  death  did  belong,  and  to  pay 
and  discharge  all  debts  and  charges  chargeable  on  the  same,  or  such 
dividends  thereon  as  shall  be  ordered  and  decreed  by  said  county 
court.  Hereby  requiring  you  to  make  and  return  to  said  court,  within 
three  months,  a  true  and  perfect  inventory  of  all  the  goods,  chattels, 
rights,  credits,  and  real  estate  of  said  deceased,  which  shall  come  to 
your  possession  or  knowledge,  or  to  the  possession  of  any  other  person 
for  you,  and  also  to  render  a  just  and  true  account  of  your  admin- 
istration to  said  court,  within  one  year,  and  at  any  other  time  when 
required  by  said  court,  and  to  perform  all  orders  and  decrees  of  said 
court  by  you  to  be  performed  in  the  premises.  And  do  by  these 
presents,  depute,  constitute  and  appoint  you,  the  said  C.  D.,  admin- 
istrator of  all  and  singular  the  goods,  chattels,  rights,  credits,  and 
estate  of  the  said  A.  B.,  deceased. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  have  caused 
the  seal  of  said  county  court  to  be  hereunto   affixed,  at  the  city  of 

,  Nebraska,  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

(229) 


§  154  PBOBATE    AND    ADMINISTRATION.         [Chap.  13 

Form  No.  62a — Oregon. 

LETTERS   OF  ADMINISTRATION. 
State  of  Oregon, 
County  of , — ss. 

To  all  persons  to  whom  these  presents  shall  come,  greeting: 

Know  ye,  that  it  appearing  to  the  court  aforesaid,  that  A.  B.  has 
died  intestate,  leaving  at  the  time  of  his  death  property  in  this  state, 
such  court  has  duly  appointed  C.  D.  administrator  of  the  estate  of 
said  A.  B. ;  this  therefore  authorizes  the  said  C.  D.  to  administer 
the  estate  of  said  A.  B.,  deceased,  according  to  law. 

In  testimony  whereof  I,  E.  F.,  clerk  of  the  county  court,  have  here- 
unto subscribed  my  name  and  affixed  the  seal  of  said  court  this 

day  of  ,  19—. 

(Signed)     E.  F., 
Clerk  County  Court. 

§  154.    Letters  of  administration  cannot  be  attacked 

collaterally. 

If  the  petition  for  appointment  alleges  the  necessary 
facts  to  confer  jurisdiction,  and  the  order  for  appoint- 
ment shows  that  the  statutory  notice  has  been  given, 
the  order  is  not  subject  to  collateral  attack,  and  can 
only  be  set  aside  on  appeal.82  Courts  have  held  that, 
where  the  order  or  finding  of  the  county  judge  recites 
that  due  service  of  notice  of  the  hearing  has  been  had 
upon  the  parties  interested,  the  proceedings  there- 
under cannot  be  collaterally  attacked,  even  though  it 
appear  from  the  records  that  sufficient  notice  has  not 
been  given.83  The  court  is  presumed  to  have  acted 

82  Moore's  Estate  v.  Moore,  33  Neb.  509,  50  N.  W.  443;  Missouri 
Pac.  Ry.  Co.  v.  Lewis,  24  Neb.  848,  40  N.  W.  401;  Jackson  v.  Phillips, 
57  Neb.  189,  77  N.  W.  683;  Larson  v.  Union  Pac.  R.  R.  Co.,  70  Neb. 
261,  97  N.  W.  313. 

83  Shawhan  v.  Loffer,  24  Iowa,  217;  Pursley  v.  Hayes,  22  Iowa,  11; 
Tharp  v.  Brenneman,  41  Iowa,  251. 

(230), 


Chap.  13]       APPOINTMENT   OF    ADMINISTRATORS.  §  154 

on  sufficient  evidence.84  If  the  petition  insufficiently 
state  the  material  facts,  and  there  is  not  entire  omis- 
sion to  state  them,  the  appointment  would  still  not  be 
subject  to  collateral  attack.85  So  strictly  is  this  rule 
adhered  to,  that  in  Roderigas  v.  East  River  Savings 
Institution,86  the  court  held  that  an  administratrix 
could  not  recover  from  a  bank  money  deposited  there 
by  her  intestate,  but  which  had  been  paid  by  the  bank 
to  a  person  who  had  been  appointed  administrator  of 
his  estate  while  he  was  still  alive,  the  first  appoint- 
ment having  been  made  on  a  petition  and  evidence 
showing  that  he  had  been  abtfeM  for  more  than  seven 
years.  ^—\  * 

their  face  tha/the 

never  had  jurisdiction  to  make  the  appoint  run 
be  held  void,  even  {hough  attacked  collated 

The  appointment  of  a  person  out  of  the  order  oi 
preference  before  the  right  of  the  widow  or  next  of 
kin  has  expired  is  erroneous  and  not  void.  They  are 
the  only  parties  who  can  take  advantage  of  it.88 

84  Moore's  Estate  v.  Moore,  33  Neb.  848,  40  N.  W.  401;  Johnson 
v.  Johnson's  Estate,  66  Mich.  525,  33  N.  W.  413. 

85  Hyde  v.  Redding,  74  Cal.  493,  16  Pac.  380;   Chase  v.  Boss,  30 
Wis.  267. 

86  63  N.  Y.  460. 

87  Elgutter  v.  Missouri  Pac.  Ey.  Co.,  53  Neb.  748,  74  N.  W.  255. 

88  Bamp  v.  McDaniel,  12  Or.  108,  6  Pac.  456. 

(231) 


CHAPTER  XIV. 


§  155.  Ending  of  Authority  Pending  Administration. 

156.  Removal  of  Revocation  of  Letters. 

157.  Personal  Representative  cannot  be  Removed  Except  for  Cause. 

158.  Removal  on  Account  of  Nonresidence. 

159.  Removal  for  Failure  to  Observe  Statutory  Requirements. 

160.  Removal  for  Mismanagement. 

161.  Removal  for  Incapability  and  Unsuitableness. 

162.  Removal  of  Administrator  by  Subsequent  Probate  of  Will. 

163.  Removal  of  Executrix  or  Administratrix  by  Marriage. 

164.  Removal  on  Account  of  Insufficiency  of  Bond. 

165.  Proceedings  to  Remove  Personal  Representative. 

166.  Who  may  File  Petition. 

167.  Hearing  on  Charges. 

168.  Order  of  Removal. 

§  155.    Ending  of  authority  pending  administration. 

The  authority  of  an  executor  or  administrator  over 
the  estate  of  the  decedent  may  he  ended  before  the 
administration  is  finished,  by  the  acceptance  of  his 
resignation,1  by  revocation  of  the  probate  of  the  will 2 
or  of  letters  of  administration,3  and  by  his  removal 
for  cause.4 

It  was  formerly  held  that  an  executor  who  had  once 
qualified  and  entered  upon  the  discharge  of  his  duties 
could  not  voluntarily  resign  his  trust.5  The  rule  now 
is  that  his  resignation  and  its  acceptance  by  the  court 

1  Trumble  v.  Williams,  18  Neb.  148,  24  N.  W.  716. 

2  Section  113,  supra. 

3  Moore  v.  Moore's  Estate,  33  Neb.  509,  50  N.  W.  443. 
*  Section  158  et  seq. 

5  Washington  v.  Blunt,  43  N.  C.  253;  Webb  v.  Keller,  35  La.  Ann. 
55,  1  South.  423. 

(232), 


Chap.  14]  GROUNDS  FOB  REMOVAL.  §  156 

from  whence  the  letters  issued  is  in  effect  his  removal 
for  apparently  sufficient  cause.6 

Under  the  Oregon  practice,  before  making  his  ap- 
plication, he  must  publish  a  notice  of  his  intention  to 
apply  therefor  in  some  newspaper  in  general  circula- 
tion in  the  county,  for  the  period  of  four  weeks  prior 
thereto,  and  it  is  further  made  to  appear  that  he  is 
not  in  default  in  any  matter  connected  with  the  duties 
of  his  trust.  He  is  also  required  to  pay  the  cost  of 
the  proceeding,  and  if  his  application  is  allowed,  shall 
surrender  his  letters,  and  his  powers  cease.7  A  com- 
pliance with  the  terms  of  this  statute  is  necessary.8 

The  executor  or  administrator  should  file  an  account 
of  his  administration,  and  the  same  should  be  allowed 
before  the  resignation  is  accepted. 

§  156.    Removal  by  revocation  of  letters. 

Revocation  of  the  probate  of  a  will  revokes,  per  se, 
the  letters  testamentary  issued  thereon.9  Letters  of 
administration  may  be  revoked  for  lack  of  jurisdic- 
tion or  for  fraud.  If  the  records  show  that  the  court 
failed  to  acquire  jurisdiction  by  reason  of  a  defective 
petition,  or  other  cause,  they  are  void,  and  the  court 
which  granted  them  has  power  to  revoke  the  apparent 
authority  of  the  administrator.10 

Where  they  were  obtained  by  fraud  or  collusion,  the 
right  of  the  parties  interested  to  have  them  annulled 
and  the  administrator  removed  is  generally  recog- 

«  Trumble  v.  Williams,  18  Neb.  148,  24  N.  W.  718. 

7  L.  O.  L.,  §  1176. 

8  Eamp  v.  McDaniel,   12  Or.   108,  6  Pac.  456. 
>  Section  113,  supra. 

10  Moore  v.  Moore'a  Estate,  33  Neb.  509,  50  N.  W.  443. 

(233) 


§  157  PROBATE    AND   ADMINISTRATION.         [Chap.  14 

nized.n  If  on  account  of  lapse  of  time  such  revoca- 
tion cannot  be  made  at  the  term  at  which  they  were 
granted,  it  would  seem  that  the  general  original  juris- 
diction given  the  county  court  by  the  constitution  over 
administration  of  estate  would  give  it  jurisdiction  over 
a  petition  to  revoke  administration.12  Revocation  is 
an  attack  on  the  right  of  the  executor  or  administrator 
to  administer  the  estate.  Proceedings  for  removal 
admit  that  right  but  would  end  it  for  good  and  suffi- 
cient cause. 

§  157.    Personal   representative   cannot  be  removed 
except  for  cause. 

When  the  court  has  regularly  issued  letters  testa- 
mentary or  of  administration,  it  cannot  remove  the 
appointee  except  for  the  causes  recognized  by  the 
statute  as  sufficient,  and  in  the  manner  therein  pre- 
scribed.13 The  power  of  removal  is  vested  by  statute 
in  the  court  under  the  seal  of  which  the  officer  receives 
his  appointment  and  to  which  he  is  accountable. 

If  an  executor  or  administrator  shall  reside  out  of 
this  state,  or  shall  neglect  after  due  notice  by  the 
county  judge  to  render  his  account  and  settle  the  estate 
according  to  law,  or  perform  any  decree  of  such  court, 
or  shall  abscond  or  become  insane,  or  otherwise  unsuit- 
able or  incapable  to  discharge  the  trust,  the  court  may, 
by  an  order  therefor,  remove  him.14  It  is  a  power  of 
great  importance,  and  should  not  be  arbitrarily  or 

11  Wernse  v.  Hall,  101  111.  423;  McCabe  T.  Lewis,  76  Mo.  298. 

12  See  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  451. 

13  In  re  People's  Estate,  38  S.  C.  41,  16  S.  E.  286. 

14  Her.  Stats.,  c.  17,  §  84,  [1248]. 

(234) 


Chap.  14]  GROUNDS  roR  REMOVAL.  §§  158, 159 

capriciously  exercised,  but  only  when  the  best  inter- 
ests of  the  estate  demand  it.15 

Conviction  of  a  felony,  or  of  a  misdemeanor  involv- 
ing moral  turpitude  or  unfaithfulness  or  neglect  of 
his  trust,  and  becoming  a  nonresident,  are  grounds  for 
removal  in  Oregon.16  On  account  of  there  being  no 
available  opportunity  for  a  party  to  object  to  the  ap- 
pointment of  an  executor  or  administrator  in  Oregon, 
applications  for  their  removal  are  necessarily  more 
frequent  than  in  Nebraska. 

§  158.    Removal  on  account  of  nonresidence. 

The  nonresidence  of  an  executor  or  administrator, 
in  order  to  furnish  sufficient  cause  for  his  removal, 
must  be  permanent.  He  must  have  actually  removed 
his  residence  or  domicile  from  the  state.  Absence 
from  the  state  alone  is  not  sufficient.17  Removal  from 
the  state  does  not,  eo  instanti,  remove  him  from  his 
office;  an  adjudication  of  the  court  is  necessary.18  If 
letters  were  issued  to  a  person  who  was  on  the  date  of 
their  issue  a  nonresident,  his  continued  residence  with- 
out the  state  is  not  a  ground  for  his  removal.1' 

§  159.    Removal  for  failure  to  observe  statutory  re- 
quirements. 

A  strict  compliance  with  all  the  statutory  provisions 
defining  his  duties  is  required  of  an  executor  or  admin- 
istrator, and  he  may  be  removed  from  office  for  failure 

15  Dalyrmple  v.  Gamble,  66  Md.  298,  8  Atl.  468. 

16  L.  O.  L.,  §§  1159,  1160. 

17  Griffith    v.   Frazier,  8    Cranch     (U.   S.),   25;     Succession   of   Me- 
Donough,  7  La.  Ann.  472. 

18  Yarborough  v.  Ward,  34  Ark.  204;  State  v.  Eucker,  59  Mo.  17; 
Hardaway  v.  Parham,  27  Miss.  103. 

19  Wiley  v.  Brainerd,  11  Vt.  107. 

(235) 


§  160  PROBATE    AND    ADMINISTRATION.         [Chap.  14 

to  perform  any  of  them;  as  where  he  qualified  and  did 
nothing  else;20  for  failure  to  make  and  file  an  inven- 
tory within  the  time  required  by  law,  no  sufficient 
cause  being  shown  for  such  neglect,  and  no  effort  made 
to  do  so;21  for  failure  to  make  and  file  his  annual  or 
final  account  after  being  cited  by  the  court  to  do  so, 
there  "being  money  in  his  hands  belonging  to  the  es- 
tate;22 for  paying  creditors  of  an  inferior  class  before 
those  of  a  superior  class,  the  assets  being  insufficient 
to  pay  all  in  full;23  and  for  failure  to  make  a  final 
settlement  and  distribution  of  the  estate.24 

§  160.    Removal  for  mismanagement. 

The  usual  remedy  for  mismanagement,  neglect  or 
unfaithfulness  to  the  duties  of  the  trust  by  which  a 
loss  results  to  the  estate  is  by  an  action  on  the  bond 
after  the  final  account  has  been  heard  and  allowed. 
The  law  affords  a  more  summary  procedure  by  mak- 
ing such  acts  a  cause  for  removal.  Mismanagement 
of  an  estate  consists  of  such  acts  or  neglects  as  indi- 
cate a  willful  disregard  of  the  duties  and  responsi- 
bilities of  the  office  and  which  either  have  resulted  or 
probably  will  result  in  a  loss  to  those  interested  in  the 
estate.25 

26  Luich  v.  Medin,  3  Nev.  93;  Marsh  v.  People,  15  111.  384. 

21  McFadden  v.  Boss,  93  Ind.  134;  In  re  Holladay's  Estate,  18  Or. 
164,  22  Pac.  750;  Mills  v.  Mills,  22  Or.  210,  29  Pae.  444;  In  re  Barnes' 
Estate,  36  Or.  202,  69  Pac.  464;  In  re  Mark's  Estate,  66  Or.  244,  133 
Pac.  778. 

22  Evans  v.  Buchanan,  15  Ind.  438;  Taylor  v.  Biddle,  71  N.  C.   1; 
Armstrong  v.  Stowe,  77  N.  C.  360;  Succession  of  Head,  28  La.  Ann. 
800. 

23  Foltz  v.  Allen,  17  111.  487. 

24  Hussey  v.  Coffin,  1  Allen  (Mnss.),  354. 

25  In  re  Partridge's  Estate,  31  Or.  307,  51  Pac.  82. 

(236) 


Chap.  14]        GROUNDS  FOB  REMOVAL.  §  160 

Acts  of  this  character  consist,  among  others,  of  a 
failure  to  obey  a  lawful  order  or  decree  of  the  court 
which  has  jurisdiction  to  make  the  same;26  in  making 
false  reports  to  the  court,27  of  a  general  neglect  of  his 
duties,28  of  mingling  the  funds  of  the  estate  with  those 
of  his  own  and  not  keeping  a  strict  and  accurate 
account  of  his  dealings  with  the  estate,  and  of  the  busi- 
ness affairs  of  the  estate  generally;29  in  loaning  money 
belonging  to  the  estate  when  there  were  claims  against 
the  estate  allowed  and  unpaid,  the  money  so  loaned 
not  being  repaid;30  of  having  transferred  to  himself, 
in  behalf  of  the  estate,  stock  of  a  corporation,  and  then 
selling  the  same  without  leave  of  the  court,  certifi- 
cates being  taken  in  his  own  name;31  of  refusing  to 
defend  against  claims,  although  notified  that  the  de- 
mands made  were  unjust  and  not  a  proper  charge 
against  the  estate,  and  colluding  and  conspiring  with 
the  claimants  to  enforce  such  claims,  to  the  detriment 
of  the  estate;32  of  failure  to  reduce  to  possession  as- 
sets of  the  estate  transferred  by  deceased  in  fraud  of 
his  creditors,  when  the  creditors  have  given  him  a 
sufficient  bond  of  indemnity;33  of  intentionally  omit- 
ting items  of  assets  with  which  he  should  have  been 
charged  rendering  a  false  account  of  sales,  turning 

»  Mills'  Estate,  40  Or.  428,  67  Pac.  107;  Aldridge  v.  McClelland, 
31  X.  J.  Eq.  237. 

27  In  re  Mills'  Estate,  40  Or.  428,  67  Pac.  107. 

28  In  re  Holliday's  Estate,  18  Or.  168,  22  Pac.  750;   In  re  Mark'g 
Estate,  66  Or.  344,  133  Pac.  777. 

28  Hake  v.  Stott's  Exrs.,  5  Colo.  140. 

30  State  v.  Johnson,  7  Blackf.  (Ind.)  529. 

»1  Levering  v.  Levering,  64  Md.  399,  2  Atl.  1. 

32  Cox  v.   Chalk,  57  Md.   569. 

33  Andrews  v.  Tucker,  7  Pick.  (Mass.)  250. 

(237) 


§  161  PROBATE    AND   ADMINISTRATION.         [Chap.  14 

over  assets  of  the  estate  to  a  third  party,  with  an  evi- 
dent intent  of  having  him  sell  the  same;  of  committing 
waste,  and  in  fact  in  any  serious  misapplication  of  the 
funds  of  the  estate,  where  it  appears  that  the  parties 
interested  therein  have  been  injured  thereby.34 

A  personal  representative  cannot  be  removed  for 
errors  of  judgment  which  may  have  resulted  disas- 
trously to  the  estate,  it  appearing  that  he  acted  in 
good  faith  and  without  wrongful  intent;  nor  for  mis- 
take and  error  in  his  accounts  which  are  not  inten- 
tional;35 nor  for  failure  to  attempt  the  collection  of 
doubtful  claims;36  nor  for  delay  caused  by  litigation, 
it  appearing  that  he  has  acted  in  good  faith.37 

§  161.    Removal  for  incapability  or  unsuitableness. 

The  term  ''incapable"  as  used  in  reference  to  the 
qualifications  of  an  executor  or  administrator  means 
a  lack  of  sufficient  knowledge,  education  or  experience, 
or  of  physical  and  mental  ability  to  attend  to  the  busi- 
ness of  the  estate.38 

The  term  "unsuitable"  does  not  necessarily  imply  a 
lack  of  either  character,  ability  or  experience,  but  is 
such  a  condition  arising  from  the  circumstances  of 
the  estate,  and  conditions  existing  between  the  par- 
ties, as  prevent  him  from  acting  impartially  in  the 
interests  of  all.  Such  conditions  may  arise  from  in- 

34  Gray  v.  Gray,  39  N.  J.  Eq.  332;  Edwards  v.  Cobb,  95  N.  C.  4; 
Succession  of  Decuir,  23  La.  Ann.  166. 

35  McFadden  v.  Council,  11  N.  C.  105;  Succession  of  Sparrow,  39 
La.  Ann.  696. 

36  In  re  Stow,  Myr.  Prob.  (Cal.)  97. 
87  Andrews  v.  Carr,  2  E.  I.  117. 

38  Etnerson  v.  Bowers,  14  Barb.  (N.  Y.)  658* 

(238) 


Chap.  14]  GEOUNDS  FOB  REMOVAL.  §§162,163 

debtedness  to  the  estate,  an  interest  in  claims  or  being 
at  enmity  with  the  heirs,  devisees  or  legatees.39 

An  executor  or  administrator  who  is  alleged  to  be 
the  fraudulent  grantee  of  his  decedent  would  be  clearly 
unsuitable,  should  it  be  necessary  to  bring  an  action 
to  set  aside  the  transfer.40 

§  162.    Removal  by  subsequent  probate  of  will. 

The  subsequent  probate  of  the  will  of  a  decedent 
acts  per  se  as  a  removal,  or  perhaps,  more  properly 
speaking,  a  revocation  of  the  letters  of  the  executor 
or  administrator.  The  order  admitting  the  will  to 
probate  does  not  immediately  deprive  him  of  all  power 
over  the  assets  of  the  estate.  Until  letters  testamen- 
tary or  of  administration  with  the  will  annexed  issue, 
he  has  charge  of  the  estate  as  before.41 

This  matter  is  governed  by  statute  in  Oregon,  which 
provides  that  if  the  will  be  subsequently  proven,  the 
letters  of  administration  shall  be  revoked,  and  that 
revocation  of  the  probate  of  a  will  has  the  same  effect 
on  letters  testamentary  or  of  administration  with  the 
will  annexed.42 

§  163.    Removal  of  executrix  or  administratrix  by 

marriage. 

The  marriage  of  a  feme  sole  executrix  or  adminis- 
tratrix is  a  ground  which  requires  the  revocation  of 

39  Melberg's   Appeal,   86   Pa.   129;    Kimball's  Appeal,  45   Wis.   391; 
Thayer  v.  Hosmer,  11  Met.  (Mass.)  104;  Gray  v.  Gray,  39  N.  J.  Eq. 
332. 

40  Marks  v.  Coats,  37  Of.  611,  62  Pac.  488;  In  re  Manser's  Estate, 
60  Or.  244,  118  Pac.  1024;  In  re  Mark's  Estate,  66  Or.  256,  133  Pac. 
777. 

«  State  v.  Kucker,  59  Mo.   19;   Elwell  v.  Universalist  Church,  62 
Tex<  220;  Dwight  v.  Simon,  4  La.  Ann.  490. 
42  L.  O.  L.,   §  1158. 

(239) 


§  164  PROBATE    AND    ADMINISTRATION.          [Chap.  14 

her  letters.  Her  husband  cannot  act  for  her.43  Until 
her  successor  is  appointed  and  qualified  she  is  entitled 
to  the  possession  of  the  estate.  Application  to  the 
court  for  her  removal  should  be  made  as  in  other 


cases.44 

In  Oregon  marriage  is  not  by  express  statute  made 
a  ground  for  removal  as  in  Nebraska,  and  the  proviso 
in  section  1173,  L.  0.  L.,  that  nothing  in  that  act  or 
any  other  act  or  law  of  the  state  of  Oregon  should  be 
held  to  disqualify  a  married  woman  from  acting  as 
executrix  or  administratrix,  would  seem  to  indicate  that 
she  could  not  be  removed  should  she  marry  after  the 
receipt  of  letters. 

§  164.    Removal  on  account  of  insufficiency  of  bond. 

The  county  court  also  has  authority  to  remove  a 
personal  representative  if  his  bond  shall  become  in- 
sufficient, and  he  neglect,  when  called  upon,  to  give  a 
new  one.  If  it  shall  appear  to  the  court,  by  the  appli- 
cation under  oath  of  any  party  interested  in  the  bond 
of  an  executor  or  administrator,  appointed  by  the 
court,  that  there  is  a  reasonable  doubt  as  to  the  sol- 
vency or  sufficiency  of  the  sureties  upon  any  such  bond, 
such  court  shall  cause  such  executor  or  administrator 
to  show  cause  why  he  shall  not  execute  a  new  bond  in 
the  premises,  with  sureties  to  be  approved  by  the  court 
as  provided  by  law.45  Such  insufficiency  may  arise 
from  the  death  or  insolvency  of  a  surety,46  or  by  the 
finding  of  property  belonging  to  the  estate  after  the 

43  Eev.  Stats.,  c.  17,  §  69,   [1333]. 

44  Teschemacher  v.  Thompson,  18  Cal.  11;  Buckley  v.  Buckley,  16 
Nev.  180. 

45  Eev.  Stats.,  c.  16,  §81,  [1208];  L.  O.  L.,  §§1161,  1162. 

46  Eenfro  v.  White,  23  Ark.  195;  State  v.  Stroop,  22  Ark.  328. 

(240) 


Chap.  14]  GROUNDS  FOB  REMOVAL.  §  164 

inventor}*  is  made.47  "If  upon  the  hearing  of  any  such 
matter  the  court  shall  require  a  new  bond  with  sure- 
ties, and  such  executor  or  administrator  shall  fail  to 
comply  with  the  order  of  the  court,  he  shall  be  removed 
from  his  said  trust,  *  *  *  an(j  another  executor 
or  administrator  appointed  in  his  place.™8 

His  failure  to  file  the  bond  within  the  time  fixed  by 
the  court  operates  as  a  removal  from  the  trust  without 
further  action.49 

Under  the  Oregon  practice,  if  a  new  bond  is  required 
by  the  court,  an  order  is  entered  directing  the  repre- 
sentative to  file  a  new  security  within  five  days  or 
within  such  further  time  as  the  court  may  direct.  The 
approval  of  the  new  undertaking  discharges  the  sure- 
ties on  the  original  undertaking  from  any  liability  on 
account  of  their  principal  arising  from  his  acts  or 
omissions  subsequent  thereto.50 

If  an  executor  has  qualified  without  giving  bond, 
any  person  interested  in  the  estate  who  has  grounds 
to  believe  that  the  estate  has  been  or  will  be  fraudu- 
lently administered  or  mismanaged  may  make  appli- 
cation to  the  county  court  for  an  order  requiring  the 
executor  to  give  the  statutory  undertaking.51  The 
application  should  be  by  verified  petition  and  the 
executor  be  given  an  opportunity  to  be  heard.  A  fail- 
ure to  comply  with  the  order  would  be  a  good  ground 
for  revoking  his  letters  and  removing  him. 

47  Calhoun  v.  McKnight,  36  La.  Ann.  414. 

48  Rev.  Stats.,  c.  16,  §82,   [1209]. 

49  Levy  v.  Tiley,  4  Or.  393. 
M  L.  O.  L.,  §  1162. 

61  L.  O.  L.,  §  1153;  Bellinger  v.  Thompson,  26  Or.  340,  37  Pac.  714. 

16— Pro.  Ad.  (241) 


§  165  PROBATE    AND    ADMINISTRATION.         [Chap.  14 

§  165.    Application  for  removal  of  personal  repre- 
sentative. 

Proceedings  to  remove  an  executor  or  administrator 
are  commenced  by  the  filing  of  a  verified  petition  set- 
ting up  the  reasons  why  removal  is  sought,  and  the 
issue  of  a  citation  thereon.52  The  application  may  be 
made  by  any  person  interested  in  the  estate, — devisee, 
legatee,  heir  or  creditor,53  the  assignee  of  a  legatee,54 
or  the  guardian  of  a  minor  heir,55  a  party  who  has  per- 
formed services  for  the  estate,  his  claim  for  which  has 
been  allowed.56  When  filed  by  a  creditor,  it  must  show 
that  his  claim  has  been  allowed,  and  that  he  has  been 
or  will  be  injured  by  the  maladministration  of  the 
estate.57 

A  surety  on  the  administration  bond  has  such  an 
interest  in  the  estate  as  to  give  him  power  to  bring 
the  action.58  A  party  entitled  to  administer  and  has 
never  waived  his  right  is  the  only  party  entitled  to 
petition  to  remove  the  administrator  on  the  ground 
that  letters  should  have  been  issued  to  him.59 

The  right  of  a  debtor  of  the  estate  to  petition  for 
removal  has  been  denied  by  every  court  except  one 

52  Rev.  Stats.,  c.  17,  §  84,  [1348];  L.  O.  L.,  §  1159. 

53  Hake  v.  Stott's  Exrs.,  5  Colo.  140;  Brown  v.  Ventress,  24  La.  Ann. 
187;  White  v.  Spaulding,  50  Mich.  22,  14  N.  W.  684. 

54  Yeaw  v.  Searle,  2  R.  I.  164. 

55  Yearkes  v.  Broom,  10  La.  Ann.  94. 

56  In  re  Mills'  Estate,  40  Or.  428,  67  Pac.  107. 

57  Knight  v.   Hamaker,  33  Or.  154,  54  Pac.  277,  659;   In  re  Mills' 
Estate,  40  Or.  428,  67  Pac.  107;  In  re  Patten's  Estate,  18  D.  C.  S92. 

58  Allen  v.  Sanders,  34  N.  J.  Eq.  203. 

59  Estate  of  Wooten,  56  Cal.  322;  Mullanphy  v.  St.  Louis  Co.,  6  Mo. 
553;  Garrison  v.  Cox,  95  N.  C.  353;  Pace  v.  Openheim,  12  Ind.  533. 

(242) 


Chap.  14]  GROUNDS  FOR  REMOVAL.  §  166 

that  has  ever  passed  upon  it,  on  the  ground  that  he 
has  no  interest  in  the  estate.60 

§  166.    Procedure  for  removal. 

On  the  filing  of  a  proper  petition  a  citation  issues 
to  the  executor  or  administrator.61 

Under  the  Oregon  practice,  the  general  supervision 
over  administration  of  estates  given  the  county  court 
by  the  statute,62  gives  the  court  power  of  its  own  mo- 
tion, whenever  it  shall  appear  that  the  interests  of  the 
estate  require  it,  to  issue  a  notice  of  his  own  motion 
directing  the  executor  or  administrator  to  appear  and 
show  cause  why  he  should  not  be  removed,  and  the 
court  may  remove  him  without  such  notice  where  it 
appears  on  a  hearing  on  his  account  that  he  has  been 
guilty  of  misconduct  such  as  would  demand  his  re- 
moval.63 No  notice  to  the  representative  is  required 
when  the  cause  alleged  is  his  removal  from  the  estate.64 

Personal  service  of  the  notice  or  citation  should  be 
had,  but  where  the  cause  set  up  is  nonresidence  and 
the  party  is  without  the  state,  service  by  publication  is 
the  only  kind  available. 

The  notice  should  set  out  the  reasons  why  removal 
is  sought.  There  is  no  statutory  provision  for  the 
filing  of  an  answer  or  forming  an  issue  to  be  decided 
by  the  court.  It  has  been  held  that  the  same  rule  of 

60  Missouri  Pac.  K.  E.  Co.  v.  Bradley,  51  Neb.  565,  71  N.  W.  283; 
Missouri  Pacific  K.  Co.  v.  Jay's  Estate,  53  Neb.  747,  74  N.  W.  259; 
White  v.  Spaulding,  50  Mich.  22,  14  N.  W.  684;  C.  B.  &  Q.  By.  Co.  v. 
Gould,  64  Iowa,  343,  20  N.  W.  464;  Penniman  v.  French,  2  Mass.  140. 

si  Rev.  Stats.,  c.  17,  §84,  [1348]. 

62  L.  O.  L.,  §§  1159,  1165. 

63  In  re  Partridge's  Estate,  31  Or.  306,  51  Pac.  82. 

64  Moore  v.  Willamette  Trans.  Co.,  7  Or.  386. 

(243) 


§  166  PROBATE    AND    ADMINISTRATION.         [Chap.  14 

laches  applies  to  this  as  other  judicial  proceedings,  and 
that  the  petition  should  be  filed  within  a  reasonable 
time  after  the  facts  have  come  to  the  knowledge  of 
the  petitioner.65 

Form  No.  63. 

PETITION  TO  REMOVE  EXECUTOR  OR  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  E.  F.,  respectfully  represents  unto  said  court  that 
he  is  a  son  and  an  heir  at  law  of  said  A.  B.;  that  C.  D.  is  the  adminis- 
trator of  said  estate  under  letters  issued  out  of  and  under  the  seal 
of  said  court. 

Second.  That  said  C.  D.  has  been  guilty  of  gross  maladministra- 
tion of  said  estate,  and  of  willful  negligence  in  administering  the 
affairs  thereof,  in  this,  that  the  said  C.  D.,  administrator  as  afore- 
said, on,  to  wit,  the  day  of  ,  19 — ,  paid  out  from  the 

assets  of  said  estate  to  one  L.  M.,  he,  the  said  L.  M.,  not  being  an 
heir  or  legatee  of  said  estate,  the  sum  of  five  hundred  dollars  ($500), 
which  sum  said  C.  D.  paid  to  said  L.  M.  as  aforesaid  in  settlement 
of  his,  said  C.  D.'s  individual  debt;  that  said  C.  D.,  administrator, 
has  failed  to  keep  the  house  and  other  buildings  situated  upon  the 
following  described  real  estate  [describe  real  estate],  he  having  pos- 
session of  said  real  estate  as  such  administrator,  in  a  tenantable  state 
of  repair,  as  required  by  law,  and  that,  by  reason  of  such  failure, 

said  buildings  have  been  vacant  for  the  space  of  ,  and  said 

estate  has  sustained  damages  in  the  sum  of dollars. 

Third.  That  said  C.  D.  has  neglected  and  refused,  and  still  neglects 
and  refuses,  to  reduce  to  possession  a  certain  claim  of  said  estate 
against  the  B.  &  M.  R.  Co.,  the  amount  of  which  is  unknown  to  your 
petitioner,  but  which  claim  can,  with  due  diligence,  be  enforced  by 
suit. 

Fourth.  That  said  C.  D.  has,  since  his  appointment  as  aforesaid, 
become  an  habitual  drunkard. 

Your  petitioner  therefore  prays  that  order  may  issue  to  the  said 
C.  D.,  administrator,  commanding  him  to  appear  and  show  cause, 
at  a  time  and  place  to  be  therein  specified,  why  the  letters  of  admin- 
istration on  the  estate  of  A.  B.,  deceased,  granted  to  him  on  the 

65  Hanifan  v.  Needles,  108  111.  403;  Schroeder  v.  Superior  Court,  70 
Cal.  343,  11  Pac.  651;  Murray  v.  Oliver,  3  B.  Mon.  (Ky.)  11. 

(244) 


Chap.  14]  GROUNDS  FOR  REMOVAL.  §  167 

• day  of  ,   19 — ,  by  said  court,  should  not  be  annulled, 

and  that  letters  of  administration  de  bonis  non  upon  said  estate  be 
granted  to  some  suitable  and  competent  person,  to  be  determined  upon 
by  the  court. 

Dated  this  day  of  ,  19 — . 

(Signed)     E.  F. 

[Add  verification,  Form  No.  5.] 

§  167.    Hearing  on  the  charges. 

An  executor  or  administrator  is  entitled  to  be  heard 
in  defense  of  the  charges  preferred  against  him.6* 
By  entering  an  appearance  he  waives  technical  objec- 
tions, and  if  the  case  proceeds  to  hearing  on  the 
merits  cannot  afterward  attack  the  sufficiency  of  the 
petition.67  Where  he  personally  appeared  on  the 
hearing  at  which  letters  were  granted,  he  cannot  attack 
the  regularity  of  the  proceedings,  unless  they  were 
absolutely  void,  and  the  action  should  be  dismissed.68 

The  burden  of  proof  is  on  the  petitioner,  and  he  must 
establish  one  or  more  of  the  statutory  causes  to  the 
satisfaction  of  the  court.69  Where  the  cause  is  such 
a  one  as  cannot  well  be  contested,  like  the  marriage 
of  a  feme  sole,  the  proceedings  may  be  less  formal,70 
and  if  gross  jurisdictional  irregularities  appear  on  the 
face  of  the  records,  the  court  may  set  aside  the  letters 
of  its  own  motion.71 

«5  In  re  Partridge's  Estate,  31  Or.  297,  51  Pac.  82;  Hanifan  v. 
Needles,  108  HI.  403. 

67  In  re  Barnes'  Estate,  36  Or.  278,  59  Pac.  464. 

68  Morgan  v.  Dodge,  44  N.  H.  262. 

69  Gregg  v.  Wilson,  24  Ind.  227. 

70  Wiley  v.  Brainerd,   11   Vt.   107. 

"i  Watson  v.  Glover,  77  Ala.  323;  Broughton  v.  Bardley,  34  Ala. 
694. 

(245) 


§  167  PROBATE    AND   ADMINISTRATION.         [Chap.  14 

Form  No.  64. 

ORDER    TO   PERSONAL    REPRESENTATIVE    TO   SHOW   CAUSE 
WHY  HE   SHOULD   NOT  BE   REMOVED. 

[Title  of  Cause  and  Court.] 

To.C.  D.,  Administrator  of  said  Estate: 

You  are  hereby  commanded  to  appear  before  the  county  court  of 

said  county  on  the day  of  ,  19 — ,  at  the  hour  of  9  A.  M. 

of  said  day,  and  show  cause  why  you  should  not  be  removed  from 
your  office  as  administrator  of  said  estate  for  the  following  reasons 
as  set  out  in  the  petition  of  E.  F.  therefor:  [State  substance  of 
charges.] 

Dated  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

Form  No.  65. 

ORDER  REMOVING  PERSONAL  REPRESENTATIVE. 
[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  E.  F.  for  the  removal  of  C.  D.  as  admin- 
istrator of  said  estate  for  malfeasance  in  office,  the  answer  of  said 
C.  D.  and  the  evidence,  and  was  submitted  to  the  court.  Upon  con- 
sideration whereof  the  court  finds:  [State  findings  of  court  in  sub- 
stance.] 

It  is  therefore  ordered  and  decreed  by  said  court  that  said  C.  D. 
be  removed  from  his  trust  as  such  administrator. 

Dated  this day  of ,  19 — . 

(Signed)     J.   K., 
County  Judge. 

Form  No.  66. 

APPLICATION     FOR      ADDITIONAL      SECURITY     UPON      EX- 
ECUTOR'S,  ADMINISTRATOR'S    OR  GUARDIAN'S  BOND. 

[Title  of  Cause  aad  Court.] 

Your  petitioner,  L.  M.,  respectfully  represents  unto  said  court  that 
on  the  day  of  ,  19 — ,  an  order  of  said  court  was  en- 
tered appointing  one  C.  D.  administrator  of  the  estate  of  said  A.  B., 

deceased;  that  on  the day  of ,  19 — ,  said  C.  D.  executed 

a  bond  as  such   administrator    in  the    penal  sum    of  dollars 

(246), 


Chap.  14]  GROUNDS  FOB  REMOVAL. 

($ ),  with  E.  F.  and  G.  H.  as  sureties,  which  bond  was,  on  the 

day  of  ,  19 — ,  duly  approved  as  to  form  and  sufficiency 

of  sureties  by  said  court,  and  filed  therein,  and  thereupon  letters  of 
administration  upon  said  estate  issued  under  seal  of  said  court  to  said 

C.  D.;  and  that  said  C.  D.  is  now,  and  ever  since  said  day  of 

• ,   19 — ,   has  been,  the  duly  qualified  and   acting  administrator 

of  the  said  estate  of  A.  B.,  deceased;  that  said  E.  F.,  bondsman  as 

aforesaid,  is  insolvent,  and  on  the  day  of  ,  19 — ,  filed 

his    voluntary    petition   in   bankruptcy   in   the    district    court   of    the 

United  States  for  the  district  of  Nebraska, division;  that  said 

administrator's  bond  of  said  C.  D.  is  therefore  impaired,  and  does 
not  afford  adequate  security  to  those  interested  in  said  estate  of  said 
A.  B. 

Third.  That  your  petitioner  is  a  son  of  said  A.  B.,  and  therefore 
entitled  to  a  distributive  share  of  said  estate. 

Fourth.  Your  petitioner  therefore  prays  that  an  order  to  show 
cause  may  issue  out  of  and  under  the  seal  of  this  court  to  the  said 
C.  D.,  commanding  him  to  show  cause  why  an  order  of  said  court 
should  not  be  entered  requiring  him  to  execute  a  new  bond  in  the 
premises  with  good  and  sufficient  surety,  to  be  approved  by  the  court, 
and  that,  in  default  of  his  complying  with  such  order  and  executing 
such  bond,  he  be  removed  from  said  trust,  and  that  some  suitable 
person,  to  be  designated  by  the  court,  be  appointed  administrator  of 
the  estate  of  said  A.  B. 

Dated  this  day  of ,  19 — . 

(Signed)     L.  M. 

[Add  verification,  Form  No.  5.] 

Form  No.  67. 

ORDER  TO  SHOW  CAUSE  WHY  NEW  BOND  SHOULD  NOT  BE 

GIVEN. 

[Title  of  Cause  and  Court.] 

To  C.  D.,  Administrator  of  the  Estate  of  A.  B.,  Deceased: 

You  are  hereby  cited  to  show  cause  on  the  day  of  , 

19 — }  at  9  o'clock  A.  M.,  at  the  county  courtroom  in  said  county, 
why  an  order  of  said  court  should  not  be  entered  requiring  you  to 
execute  a  new  bond  in  the  premises,  with  sufficient  surety,  to  be 
approved  by  this  court,  as  provided  by  law. 

Dated  this day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

(247) 


§  167  PEOBATE   AND   ADMINISTRATION.         [Chap.  14 

Form  No.  68. 

ORDER  REQUIRING  NEW  BOND. 
[Title  of  Cause  and  Court.] 

Now  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  application,  under  oath  of  E.  F.,  praying  that  C.  D., 
administrator  of  said  estate,  be  required  to  give  an  additional  bond 
with  surety  to  be  approved  by  the  court,  and  the  evidence,  and  was 
submitted  to  the  court. 

Upon   consideration  whereof  the  court  finds  that  personal   service 
of  the  order  to  show  cause  heretofore  issued  in  said  matter  was  made 

on  said  C.  D.  on  the  day  of  ,  19 — ;  that  G.  H.,  one  of 

the  sureties  on  said  bond,  is  a  bankrupt,  and  that  the  security  of  said 
bond  is  impaired.  It  is  therefore  ordered  that  said  C.  D.,  adminis- 
trator, file  an  additional  bond  in  the  sum  of  $ ,  with  surety 

to  be  approved  by  this  court  within  ten  days  from  and  including  this 
date,  and  that  in  default  thereof  he  be  removed  from  his  trust  as 
such  administrator. 

(Signed)     J.  K., 
County  Judge. 

Form  No.  69. 

ORDER     REMOVING    EXECUTOR    OR     ADMINISTRATOR    FOR 
FAILURE  TO  STRENGTHEN  BOND. 

[Title  of  Cause  and  Court.] 

Whereas,  on  the  day  of ,  19 — ,  an  order  of  this  court 

was  duly  made  an,d  entered  requiring  C.  D.,  administrator  of  said 
estate,  within  ten  days  from  the  date  thereof,  to  file  a  new  bond 
as  such  administrator,  and  more  than  ten  days  have  elapsed  since 
the  date  thereof,  and  said  C.  D.  has  neglected  and  refused  to  file 
a  new  bond  as  required  by  said  order: 

The   court  doth   hereby   order  and   decree  that  the  letters   of  ad- 
ministration heretofore,  on  the  —  day  of  ,  19 — ,  issued  to 

said  C.  D.,  be  and  the  same  hereby  are  revoked  and  annulled,  and 
the  said  C.  D.  removed  from  his  trust  as  administrator. 

Dated  this day  of  ,  19 — . 

(Signed)       J.  K., 

County  Judge. 
(248) 


Chap.  14J  GKOUNDS  FOB  REMOVAL.  §  168 

Form  No.  70. 

ORDER    TO    FORMER    EXECUTOR    OR    ADMINISTRATOR    TO 
RENDER  AN  ACCOUNT. 

[Title  of  Cause  and  Court.] 

To  C.  D.,  Late  Administrator  of  Said  Estate: 

You  are  hereby  ordered  to  forthwith  deliver  to  E.  F.,  administrator 
de  bonis  non  of  said  estate,  all  the  goods,  chattels,  credits,  and  effects 
thereof  in  your  possession.  You  are  further  ordered  to  render  an 
account  of  your  transaction  in  regard  to  said  estate  within  ten  days 
from  date. 

Dated  this —  day  of >  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

§  168.    Order  of  removal. 

The  decree  or  order  removing  an  executor  or  admin- 
istrator is  a  final  one,  and  an  appeal  lies  therefrom  to 
the  district  court.72  It  should  recite  all  the  facts 
necessary  to  give  the  court  jurisdiction.  Its  regular- 
ity will  not  be  presumed.73  When  entered  the  court 
should  appoint  an  administrator  de  bonis  non,  and 
issue  a  citation  to  the  former  representative  to  turn 
over  to  him  all  the  goods,  chattels,  credits  and  effects 
of  the  estate  in  his  possession,  and  file  his  account.74 
If  he  fail  to  comply  with  such  order,  he  may  be  pro- 
ceeded against  for  contempt.76 

The  rule  usually  prevails  that  when  the  authority 
of  an  executor  or  administrator  is  revoked,  or  he  is 
removed  for  cause,  all  acts  done  by  him  within  the 
scope  of  his  authority,  and  in  good  faith  on  his  part, 

72  Pope  v.  McEndree,  75  Neb.  550,  106  N.  W.  659. 

73  Scott  v.  Crews,  72  Mo.  261. 

74  Rev.  Stats.,  c.  17,  §85,  [1349];  L.  O.  L.,  §  1164;  Rutenic  v.  Ha- 
maker,  40  Or.  453,  67  Pac.  200. 

76  Tome's  Appeal,  50  Pa.  285;  Biddison  v.  Story,  57  Md.  96. 

(249) 


§  168  PROBATE    AND   ADMINISTRATION.         [Chap.  14 

and  on  the  part  of  those  dealing  with  him,  remain 
valid  and  in  full  force,76  except  that  if  he  is  removed 
for  the  reason  that  the  court  was  without  jurisdiction 
in  making  the  appointment,  he  should  be  treated  as  an 
executor  de  son  tort.77 

An  order  requiring  an  additional  bond  is  also 
treated  as  appealable.  While  the  appeal  is  pending 
the  representative  is  without  authority  unless  he  gives 
security.  The  appeal  does  not  suspend  the  order.78 

76  Allen  v.  Dundas,  3  Term  Eep.  125. 

77  Bigelow's  Exr.  v.  Bigelow's   Admr.,  4  Ohio,   138;   Kittredge  v. 
Folsoin,  8  N.  H.  98;  Tidball  v.  Young,  58  Neb.  261,  78  N.  W.  507. 

78  Bills  v.  Scott,  49  Tex.  430;  Knight  v,  Hamaker,  33  Or.  154,  54 
Pac.  277,  659,      - 

(250) 


CHAPTER  XV. 

APPOINTMENT  OF  ADMINISTRATOR  DE  BONIS  NON. 

§  169.     Definition — When  Appointed. 

170.  Jurisdiction — Petition. 

171.  Notice — Hearing. 

§  169.    Definition — When  appointed. 

An  administrator  de  bonis  non  is  a  person  appointed 
by  the  county  court  in  the  place  of  a  former  executor 
or  administrator  whose  authority  has  terminated  be- 
fore the  administration  of  the  estate  has  been  com- 
pleted.1 In  every  case  he  has  the  same  rights,  powers 
and  duties-  as  were  granted  by  the  court  to  his  prede- 
cessor, besides  such  additional  powers  as  are  neces- 
sary in  order  to  obtain  possession  of  the  assets  of  the 
estate  in  the  hands  of  such  predecessor  or  his  agents.2 

At  common  law  the  right  to  administer  passed  to 
the  executor  of  an  executor,3  but  that  right  did  not 
pass  to  an  administrator  of  either  an  executor  or 
administrator.4 

Whenever  a  vacancy  occurs  by  reason  of  the  death, 
acceptance  of  the  resignation,  or  removal  of  an  execu- 
tor or  administrator,5  before  his  final  account  is  filed,6 

1  Prusa  v.  Everett,  78  Neb.  250,  113  N.  W.  571;  Ellyson  v.  Lord, 
124  Iowa,  125,  99  N.  W.  582. 

2  Prusa  v.   Everett,   78  Neb.   250,   113  N.  W.   571;   Rutenic   v.  Ha- 
maker,  40  Or.  444,  67  Pac.  196;   Knight  v.  Hamaker,  33  Or.  154,  54 
Pac.  277,  659. 

3  2  Bl.  Com.  506. 

4  Crafton  v.  Beal,  1  Ga.  322. 

5  Rev.  Stats.,  c.  17,  §§  71,  85,  [1335],  [1349]  ;  L.  O.  L.,  §  1163. 

«  Jam  agin  v.  Frank,  59  Miss.  393;  Herren's  Estate,  40  Or.  96,  67 
Pac.  194. 

(251) 


§  170  PROBATE    AND    ADMINISTRATION.         [Chap.  15 

or  after  the  discharge  of  the  personal  representative 
it  appears  that  there  are  unadministered  assets  of  the 
estate,  whether  the  same  were  known  to  the  executor 
or  administrator  or  not,7  an  administrator  de  bonis  non 
should  be  appointed. 

If  the  final  account  is  contested  on  the  ground  that 
there  is  property  of  the  estate  not  accounted  for,  and 
the  personal  representative  dies  before  a  hearing  on  it 
has  been  had,  such  administrator  should  be  appointed. 

§  170.    Jurisdiction — Petition. 

The  court  which  issued  the  original  letters  testa- 
mentary or  of  administration  has  exclusive  authority 
to  appoint  an  administrator  de  bonis  non.8  'No  person 
has  any  preferential  right  to  the  appointment.9 

In  Oregon,  administration  is  granted  to  those  next 
entitled,  if  they  are  competent  and  qualified  to  act.10 

When  a  personal  representative  is  removed  for  cause, 
no  other  application  than  that  contained  in  the  peti- 
tion for  removal  is  necessary.  In  all  other  cases  a 
formal  application  must  be  made.  There  is  no  time 
fixed  by  the  statute  within  which  it  must  be  made,  but 
lapse  of  time  raises  a  presumption  that  the  estate  has 
been  fully  administered.11 

7  Owen  v.  Ward's  Estate,  127  Mich.  693,  87  N.  W.  70;  Wilcoxon  v. 
Reese,  63  Md.  542. 

8  Byerly  v.  Donlin,  72  Mo.  270;  Beasley  v.  Howard,  117  Ala.  499,  22 
South.  989. 

»  Rev.  Stats.,  c.  17,  §§73,  85,  [1337],  [1349];  Russell  v.  Hoar,  3 
Met.  (Mass.)  187. 

10  L.  O.  L.,  §  1163. 

11  Bancroft  T.  Andrews,  6  Cush.  (Mass.)  493;  In  re  Holmes,  33  Me. 
577. 

(252) 


Chap.  15]        ADMINISTBATION  DE  BONIS  NON.  §  171 

The  necessary  allegations  of  the  petition  are  that 
some  act  or  duty  remains  to  be  performed  by  an  execu- 
tor or  administrator,  or  that  there  are  unadministered 
assets.12 

§  171.    Notice — Hearing. 

The  proceedings  for  the  appointment  of  an  admin- 
istrator de  bonis  non,  when  begun  after  death  or  dis- 
charge of  the  executor  or  administrator,  are  substan- 
tially the  same  as  on  an  original  application  for  letters. 
Notice  must  be  issued  and  served  on  the  parties  inter- 
ested as  the  court  may  direct.  On  the  hearing  it  must 
be  shown  by  competent  testimony  that  something  re- 
mains to  be  done  to  settle  the  estate — either  some 
action  must  be  brought  before  distribution  can  be  had, 
a  showing  that  there  is  property  actually  belonging 
to  the  estate  never  reduced  to  possession  by  the  repre- 
sentative, or  that  there  are  assets  which  he  has  re- 
ceived and  not  accounted  for.13  The  order  is  a  final 
one  and  subject  to  appeal.14 

The  appointee  qualifies  by  giving  a  bond  in  the  same 
manner  as  an  executor  or  administrator. 

Under  the  Oregon  practice  notice  is  not  required. 

12  Owen  v.  Ward's  Estate,  127  Mich.  693,  87  N.  W.  70;  Hinton  T. 
Eland's  Admr.,  81  Va.  588;  San  Roman  v.  Watson,  54  Tex.  254. 

13  Chamberlin's  Appeal,  70  Conn.  363,  39  Atl.  734;  Ratcliff  v.  McGee, 
165  Mo.  461,  65  S.  W.  713. 

i*  Cases  cited  under  §  171. 

(253) 


§  171  PROBATE    AND   ADMINISTRATION.         [Chap.  15 

Form  No.  71. 

PETITION  FOR  APPOINTMENT  OF  ADMINISTRATOR  DE 
BONIS  NON  ON  ACCOUNT  OF  DEATH,  RESIGNATION  OR 
REMOVAL  OF  EXECUTOR  OR  ADMINISTRATOR. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
on  the  day  of  ,  19 — ,  G.  H.  was  duly  appointed  admin- 
istrator of  the  estate  of  said  A.  B.,  and  thereupon  executed  his 
bond  in  manner  provided  by  law,  and  entered  upon  the  duties  of  said 

office;  that  en  the  day  of  ,  19 — ,  said  G.  H.  resigned 

[died;  was  removed  from  said  office  by  an  order  of  said  court,  duly 
made  and  entered] ;  that  said  estate  is  not  entirely  administered 
upon;  that  there  is  now  due  said  estate  credits  estimated  to  be  worth 
the  sum  dollars,  and  there  are  claims  reported  by  the  com- 
missioners to  be  due  from  said  estate  of  the  amount  of  —  —  dollars 

($ ) ;  that  your  petitioner  is  a  nephew  and  heir  at  law  of  said 

A.  B.  [said  estate  is  indebted  to  your  petitioner  in  the  sum  of  

dollars  ($ )  for  goods,  wares,  and  merchandise  sold  and  delivered 

to  said  A.  B.  in  his  lifetime]. 

Wherefore,  your  petitioner  prays  that  letters  of  administration  may 
be  granted  to  him  upon  the  goods,  chattels,  rights,  credits,  and  effects 
of  said  A.  B.  not  already  administered  upon. 

Dated  this day  of  -      — ,  19 — . 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  72. 

PETITION  FOR  APPOINTMENT  OF  ADMINISTRATOR  DE  BONIS 
NON  AFTER  DISCHARGE  OF  ADMINISTRATOR. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
on  the  day  of  ,  19 — ,  one  E.  F.,  was  duly  appointed  ad- 
ministrator of  said  estate  by  letters  of  administration  issued  out 
of  and  under  the  seal  of  said  court,  and  thereupon  entered  upon  the 

duties  of  his  said  office;  that  on  the  day  of  ,  19 — ,  the 

final  report  of  said  E.  F.  was  allowed,  and  on  the  same  date  an  order 
was  entered  discharging  him  as  such  administrator;  that  said  estate 
has  not  been  entirely  administered;  that  said  A.  B.  was  at  the  date 
of  his  death  the  owner  of  an  undivided  half  interest  in  a  herd  of 
cattle, — the  exact  number  of  cattle  is  unknown  to  your  petitioner, 

(254) 


Chap.  15]        ADMINISTRATION  DE  BONIS  NON.  §  171 

but  he  alleges  that  they  numbered  at  least  500  head,  branded  M; 
that  the  interest  of  said  estate  in  said  cattle  was  not  included  by 
said  E.  F.  in  his  inventory  or  in  any  account,  and  said  assets  have  not 
been  administered  upon.  [Continue  as  in  previous  form.] 

Form  No.  73. 

ORDER   FOB   APPOINTMENT   OF   ADMINISTRATOR   DE   BONIS 

NON. 
[Title  of  Cause  and  Court.] 

Now,  on  this day  of  ,  19 — ,  this  cause  came  on  to  be 

heard  upon  the  petition  of  C.  D.  for  his  appointment  as  adminis- 
trator of  the  estate  of  A.  B.,  late  of  said  county,  deceased,  not  already 
administered  upon,  and  it  appearing  to  the  court  that  due  notice  of 
this  proceeding  has  been  given  to  all  persons  interested  in  said  estate 
[if  notice  has  been  given  by  publication,  say:  By  publication  thereof 

for  three  weeks  in  the  ,  a  newspaper  printed,  published,  and 

circulated  in  said  county,  as  appears  by  the  files  in  this  proceeding], 
whereupon  C.  D.  was  sworn  and  testified;  on  consideration  whereof, 
and  of  the  records  and  files  in  this  proceeding,  the  court  finds  that 
there  are  assets  of  said  estate  not  administered  upon  of  the  probable 
value  of  $ . 

It  is  therefore  ordered  that  letters  of  administration  of  the  goods 
and  estate  of  the  said  A.  B.  not  already  administered  upon  issue 

to  said  C.  D.  upon  his  giving  bond  in  the  sum  of  $ ,  and  taking 

the  Oath  required  by  law. 

Form  No.  74. 
LETTERS   OF    ADMINISTRATION   DE   BONIS   NON. 

State  of  Nebraska, 
County, — ss. 

To  C.  D.,  of  said  County: 

Whereas,  on  the  day  of  ,  19 — ,  letters  of  administra- 
tion upon  the  estate  of  A.  B.,  deceased,  were  issued  out  of  and  under 
the  seal  of  the  county  court  of  said  county  to  E.  F.;  and  whereas, 

on  the  day  of  ,  19 — ,  said  E.  F.  was  discharged  as  such 

administrator,  was  removed  from  said  trust  [or  the  resignation  of 
said  E.  F.  was  accepted],  and  there  yet  remain  goods,  credits,  and 
effects  of  said  A.  B.  not  administered  upon,  by  reason  whereof  the 
granting  of  administration  of  the  estate  of  the  said  A.  B.  not  already 

administered    upon   doth    devolve  upon   the     county  court   of  • 

county,  Nebraska:     Now,  therefore  [balance  as  in  Form  No.  62]. 

(255) 


CHAPTER  XVI. 

INVENTORY  AND  APPRAISEMENT. 

$  172.  First  Duty  of  Personal  Representative. 

173.  What  Property  must  be  Inventoried. 

174.  Personalty  Generally. 

175.  Emblements. 

176.  Fixtures. 

177.  Personal  Property  not  in  Possession  of  Representative. 

178.  Property  the  Title  to  Which  is  Questioned. 

179.  Real  Estate. 

180.  What  Need  not  be  Inventoried. 

181.  Failure  of  Executor  or  Administrator  to  File  Inventory. 

182.  Appointment  of  Appraisers. 

183.  Duties  of  Appraisers. 

184.  Inventory  of  Administrator  De  Bonis  Non. 

185.  Inventory  not  Conclusive. 

§  172.    First  duty  of  personal  representative. 

The  first  duty  of  a  personal  representative  is  to  make 
and  file  a  complete  inventory  of  all  the  assets  of  the 
estate.  It  should  be  filed  within  three  months  from 
the  date  of  letters,  include  all  the  goods,  chattels, 
credits  and  effects  of  the  deceased  which  have  come 
into  his  possession  or  knowledge,  and  be  verified  by  his 
oath.  A  residuary  legatee  who  has  given  bond  as 
such  is  not  required  to  file  an  inventory.1 

Under  the  Oregon  practice,  it  should  be  filed  within 
thirty  days  from  the  date  of  the  letters,  but  the  repre- 
sentative may  obtain  further  time  by  leave  of  the 
court,  if  necessary.2 

1  Rev.  Stats.,  c.  17,  §  97,  [1361]. 

2  L.  O.  L.,  §  1177;  In  re  Manser's  Estate,  60  Or.  240,  118  Pac.  1024; 
Wells  v.  Applegate,  10  Or.  520. 

(256) 


Chap.  16]          INVENTORY  AND  APPRAISEMENT.  §  173 

Property  is  generally  inventoried  under  three  heads: 
Real  estate,  negotiable  instruments  and  accounts,  and 
other  property.  Household  furniture,  personal  be- 
longings, wearing  apparel  and  ornaments  of  the  de- 
ceased, and  such  property  as  passes  absolutely  to  the 
widow  and  children  and  are  not  subject  to  debts, 
should  be  listed  as  a  separate  group.3 

It  should  be  definite  and  specific,  give  an  accurate 
and  full  description  of  all  real  estate,  and  fully  enumer- 
ate all  the  items  which  make  up  the  personal  prop- 
erty.4 

The  Oregon  statute  provides  that  if  no  money  has 
come  into  the  possession  of  the  representative  he  shall 
so  state,  and  that  the  statement  of  the  debts  due  the 
deceased  shall  contain  the  written  evidence  thereof, 
and  the  security  therefor,  if  any  exist,  specifying  the 
name  of  each  debtor,  the  date  of  each  written  evidence 
of  debt,  and  the  security  therefor,  the  sum  originally 
payable,  the  indorsements  thereon,  if  any,  and  their 
dates  and  the  sum  appearing  then  to  be  due  thereon.5 

§  173.    What  property  must  be  inventoried. 

All  the  assets  of  the  estate  must  be  included  in  the 
inventory.  The  term  "assets"  as  used  in  the  statute 
is  given  its  broadest  meaning,  as  including  all  the 
property  of  the  decedent  of  every  description,  that  is, 
in  any  manner  liable  for  his  debts,  the  charges  and 
expenses  of  the  administration  of  his  estate,  and  the 
allowances  for  the  support  of  his  family,  wherever  the 
same  may  be  situated,6  except  in  cases  where  he  is  an 

*  Eev.  Stats.,  c.  17,  §  100,  [1364]. 
4  Van  Meter  v.  Jones,  3  N.  J.  Eq.  520. 

«  L.  O.  L.,  §  1178;  In  re  Holladay's  Estate,  18  Or.  179,  22  Pac.  750. 
«  Schultz  v.  Pulver,  11  Wend.   (N.  Y.)   361;   Sherman  v.  Page,  85 
N.  Y.  123. 

17— Pro.  Ad.  (257) 


§  174  PEOBATB   AND   ADMINISTRATION.         [Chap.  16 

ancillary    administrator,  when    the    assets    in    other 
states  should  not  be  included.7 

Cash  on  hand,  notes,  bonds,  bank  certificates  of  de- 
posit, book  accounts,  stocks  of  merchandise,  farming 
implements,8  a  legacy  due  decedent  in  his  lifetime,  but 
unpaid  at  his  decease,  or  a  distributive  share  of  an 
estate  which  has  not  come  into  his  possession,9  all 
rights  or  causes  of  action  which  accrued  to  the  dece- 
dent under  an  express  or  implied  contract,  as  for  work 
and  labor,10  fees  or  salary  as  an  employee  of  a  corpora- 
tion, either  private  or  municipal,11  a  claim  against  the 
federal  government  for  property  taken,  or  damages 
for  any  action,  or  for  money  to  the  government  by  the 
terms  of  a  treaty  with  a  foreign  power,  to  be  distrib- 
uted by  it  as  indemnity,  and  rights  of  action  for  torts 
which  accrued  to  the  decedent  in  his  lifetime,  and 
which,  by  statute  or  common  law,  survive,  all  pass  to 
the  personal  representative,  and  therefore  must  be 
inventoried.  An  annuity  granted  to  a  party  with 
words  of  inheritance,  as  to  A.  B.  and  his  heirs,  passes 
directly  to  such  heirs,  and  the  personal  representative 
has  nothing  to  do  with  it.12 

§  174.    Personalty  generally. 

A  contingent  or  executory  interest  in  personalty, 
provided  it  is  of  such  a  nature  as  to  be  of  value  to  the 

I  Section  267,  post. 

8  2  Williams,  Executors,  703;  Bullock's  Admr.  v.  Eogers,  16  Vt.  294, 

9  Lappin  v.  Mumford,  14  Kan.  9. 

10  Loring  v.  Cunningham,  9  Gush.  (Mass.)   87. 

II  Manning  v.  Leighton,  65  Vt.  84,  26  Atl.  258;  Thurston  v.  Doane, 
47  Me.  79;  Foster  v.  Fifield,  20  Pick.  (Mass.)  67. 

12  Co.  Litt  2a;  Turner  v.  Turner,  2  Amb.  782. 

(258), 


Chap.  16]          INVENTORY  AND  APPRAISEMENT.  §  174 

estate,  or  any  valuable  incorporeal  right  of  that 
nature,13  a  partnership  interest,  or  any  right  or  share 
in  any  business  enterprise,14  and  personalty  which  has 
accrued  by  increase,  such  as  the  offspring  or  produce 
of  livestock,  accruing  after  the  death  of  decedent,  or 
the  wool  sheared  from  a  flock  of  sheep,15  should  be 
included  under  this  head.  The  stock  of  a  railroad, 
realty,  or  other  corporation,  the  property  of  which  con- 
sists principally  of  realty,  is  a  personal  asset,16  and 
therefore  it  and  any  dividend  declared  upon  the  same 
during  the  lifetime  of  the  decedent,  but  not  collected 
by  him,  or  dividends  accruing  after  his  death,  together 
with  state,  county,  municipal  and  school  bonds  and 
public  securities  of  every  description,  should  be  in- 
cluded.17 The  goodwill  of  a  business  constitutes  such 
a  tangible  asset  as  may  be  of  much  value  to  an  estate, 
and  is  properly  included.18  An  estate  for  years  is 
personalty,  though  for  ninety-nine  years,  and  renew- 
able forever;19  and  so  is  a  contract  for  the  payment 
of  royalties  for  coal  to  be  mined.20 

The  indebtedness  of  the  executor  to  the  estate  is  an 
asset  and  must  be  included  in  the  inventory,21  as  is 

13  Ladd  v.  Wiggin,  35  N.  H.  421;  Dunn  v.  Sargent,  101  Mass.  336 j 
Clapp  v.  Inhabitants  of  Stoughton,  10  Pick.  (Mass.)  468. 

14  Schenkl  v.  Dana,  118  Mass.  236. 

15  In  re  Merchant,  39  N.  J.  Eq.  506. 

IB  Weyer  v.  Second  Xat.  Bank,  57  Ind.  198. 

17  1  Schouler,  Pers.  Prop.,  616  et  seq. 

13  Howe  v.  Scaring,  19  How.  Pr.   (N.  Y.)    14,  citing  Hitchcock  v. 
Cohen.  6  Ad.  &  E.  438. 

18  Mulloy  v.  Kyle,  26  Neb.  313,  41  N.  W.  1117;  Taylor  v.  Taylor, 
47  Md.  295;  Thornton  v.  Mehring,  117  111.  55,  25  N.  E.  938;  Co.  Litt. 
46b. 

20  In  re  Hancock's  Estate,  7  Kulp  (Pa.),  36. 

21  Section  217,  post;  L.  O.  L.,  §  1182. 

(259) 


§§175,176      PROBATE    AND   ADMINISTRATION.         [Chap.  16 

also  a  debt  due  from  an  heir  or  legatee,  unless  it  ap- 
pears from  the  will  that  it  was  the  intention  of  the 
testator  to  release  the  same.22 

In  Oregon  it  must  always  be  included  in  the  inven- 
tory.23 

§  175.    Emblements. 

Natural  products  of  the  soil  which  do  not  need  to 
be  sown  or  planted,  but  renew  themselves  from  year 
to  year,  like  grass,  growing  timber  or  cultivated 
fruits,  are  in  all  cases  a  part  of  the  real  estate,  and 
consequently  should  not  be  inventoried.24  Those  pro- 
ducts which  must  be  sown  or  planted — not  produced 
spontaneously — like  small  grain,  corn,  vegetables  and 
cane,  come  under  a  different  rule,  though  always  rec- 
ognized as  chattels,  and  pass  to  the  devisee  unless 
they  are  expressly  reserved  or  excepted  by  the  will  or 
a  contrary  intention  appears  therein.25  When  so  ex- 
cepted, in  intestate  estates,26  and  in  all  cases  when 
severed  from  the  real  estate,27  they  must  be  accounted 
for  by  the  personal  representative. 

§  176.    Fixtures. 

The  law  in  regard  to  inventorying  fixtures  is  that  as 
between  heir  or  devisee  and  executor  or  administrator, 
the  rule  as  to  severance  obtains  with  the  utmost  rigor 

22  Springer's  Appeal,  29  Pa.  208. 

23  L.  O.  L.,  §  1183. 

24  Fetrow's  Exr.  v.  Fetrow,  50  Pa.  253;  Kain  v.  Fisher,  6  N.  Y.  597. 

25  Anderson   v.  Bogaard,  83   Neb.   8,   118  N.  W.   1108;   Caulton   v. 
Pope,  83  Neb.  723,  120  N.  W.  191. 

28  Penhallow  v.  Dwight,  7  Mass.  34;  Humphrey  v.  Merritt,  51  Ind. 
197. 

27  Edwards  v.  Earners'  Exrs.,  17  Pa.  597. 

(260) 


Chap.  16]         INVENTOBY   AND    APPRAISEMENT.  §  177 

in  favor  of  the  inheritance,  and  against  the  right  to 
disannex  therefrom,  and  consider  as  a  personal  chattel 
anything  which  has  been  affixed  thereto.28  It  has 
been  considerably  relaxed  in  favor  of  what  is  known 
as  ''trade  fixtures"  placed  on  the  realty  by  a  tenant 
of  the  decedent  during  his  term,  and  he  has  been  per- 
mitted to  remove  them  before  his  rights  under  the 
lease  expired,  but  not  afterward;29  but  such  improve- 
ments cannot  be  removed  if  such  removal  will  injure 
the  premises,  or  put  them  in  a  worse  plight  than  they 
were  before.30  Steam  engines,  boilers  and  mill  ma- 
chinery of  all  kinds  which  are  so  annexed  to  the  free- 
hold as  to  become  a  permanent  part  thereof,  no  matter 
by  whom  put  in,  unless  the  right  to  remove  them  is 
expressly  given,  go  with  the  land.31 

§  177.    Personal  property  not  in  possession  of  repre- 
sentative. 

An  executor  is  required  to  account  for  all  assets  of 
the  estate  wherever  situated,  and  should  inventory  all 
property  which  appears  to  belong  to  the  estate  whether 
in  his  possession  or  not.32  A  special  summary  pro- 

28  Walmsey  v.  Milne,  7  Com.  B.,  N.  S.,  115. 

2»  \Yeathersby  v.  Sleeper,  42  Miss.  732;  Dingley  v.  Buffum,  57  Me. 
381;  Tre'adway  v.  Sharon,  7  Nev.  37;  Wilgus  v.  Gettings,  21  Iowa, 
177;  Free  v.  Stuart,  39  Neb.  220,  57  N.  W.  991. 

30  Whiting  v.  Brastow,  4  Pick.   (Mass.)   310;  Lanphere  v.  Lowe,  3 
Neh.  131;  Friedlander  v.  Ryder,  30  Neb.  783,  47  N.  W.  83. 

31  Coiliss  v.  McLagin,  29  Me.  115;   Sweetzer  v.  Jones,  35  Vt.  317; 
Baker  v.  Davis,  19  N.  H.  325;  Prescott  v.  Wells,  3  Nev.  82;  Hill  v. 
Hill,  43  Pa.  531;  Alford  Carriage  Mfg.  Co.  v.  Gleason,  36  Conn.  86; 
Richardson  v.  Borden,  42  Miss.   71;   Theurer  v.  Nautre,  23   La.   Ann. 
749. 

32  Palmer  v.  Palmer,  55  Mich.  293,  21  N.  W.  352;  Tuttle  v.  Robin- 
eon,  33  N.  H.  104. 

(261) 


§  178  PROBATE    AND   ADMINISTRATION.  [Chap.  16 

ceeding  is  provided  by  statute  for  finding  out  where 
property  is.33 

The  law  requires  him  to  use  due  diligence  in  trying 
to  locate  the  assets  of  his  decedent,  as  well  as  in  trying 
to  collect  them  after  he  has  found  them.  What  con- 
stitutes such  diligence  must  necessarily  depend  upon 
the  facts  and  circumstances  connected  with  each  estate 
and  the  means  at  his  disposal.  If  he  is  guilty  of  cul- 
pable negligence,  and  it  appears  that  by  reasonable 
exertion  he  could  have  learned  of  the  existence  of  such 
assets,  and  the  estate  thereby  be  benefited,  he  would 
be  liable  therefor.34  He  should  not  exhaust  the  estate 
by  an  aimless  search,  but  exert  the  same  diligence  and 
discretion  a  man  would  use  in  his  own  business. 

§  178.    Property  the  title  to  which  is  questioned. 

Though  the  executor  or  administrator  has  no  power 
to  pass  on  the  right  of  his  decedent  to  property,  there 
are  cases  where  he  should  inventory  assets  claimed  by 
another  and  thus  require  him  to  obtain  possession  of 
the  same  by  judicial  process.  Property  found  among 
the  effects  of  a  decedent  and  over  which  he  has  exer- 
cised acts  of  ownership  are  presumed  to  be  his  though 
claimed  by  another.35 

Bonds  or  other  securities  standing  in  the  name  of 
another  party,  found  among  his  papers,  which  were 
purchased  with  his  money  and  from  which  he  received 
the  income  belong  to  his  estate.38 

33  Section  197  et  seq.,  post. 

34  Ruggles  v.  Sherman,  14  Johns.   (N.  Y.)   446;  Palmer  v.  Palmer, 
55  Mich.  293,  21  N.  W.  352. 

35  Bourne  v.  Stevenson,  58  Me.  504;  Waterhouse  v.  Bourke,  14  La. 
Ann.  358. 

36  Cummings'  Estate,  153  Pa.  397,  25  Atl.  1125. 

(262) 


Chap.  16]         INVENTORY    AND    APPRAISEMENT.  §  179 

Under  the  old  rule  property  purchased  by  a  wife 
during  coverture  was  not  deemed  her  separate  prop- 
erty unless  there  was  affirmative  proof  that  it  was  paid 
for  from  her  separate  estate  and  therefore  was  not  a 
part  of  her  estate.37  As  the  Nebraska  statutes  give 
her  the  same  control  over  her  separate  property  the 
husband  has  over  his,  it  necessarily  follows  that  there 
is  no  such  presumption  here.  It  is  the  same  as  in 
other  cases,  except  that  when  the  rights  of  creditors 
are  involved,  transactions  between  husband  and  wife 
will  be  closely  scrutinized. 

If  there  appears  to  be  some  doubt  about  the  owner- 
ship of  any  personal  property,  the  representative  may 
note  it  in  the  inventory. 

§  179.    Real  estate. 

Every  tract  of  real  estate  the  title  to  which  was  in 
the  decedent  at  the  date  of  his  death  should  be  in- 
cluded, also  every  tract  in  which  he  had  an  equitable 
interest,38  such  as  an  interest  by  virtue  of  a  tax  title,39 
as  a  vendee  in  a  contract  and  bond  for  title,40  in  public 
lands  by  virtue  of  the  public  land  laws,41  in  a  mining 
claim,42  or  a  contract  for  the  purchase  of  state  school 
land.43  The  interest  which  a  man  has  in  a  federal 
homestead  on  his  death  before  patent  issues  passes  to 

37  In  re  Brown's  Estate,  65  Vt.  331,  26  Atl.  638. 

38  Bolton  v.  Ohio  Nat.  Bank,  55  Ohio   St.  290,  33  N.  E.  115. 
3»  Rice's  Lessee  v.  White,  8  Ohio  St.  216. 

40  Solt  v.  Anderson,  67  Neb.  103,  93  N.  W.  205;  Myrick's  Heirs  r. 
Boyd,  3  Hayw.  (Tenn.)   179. 

41  Bond's  Lessee  v.  Swearingen,  1  Ohio  St.  395. 

42  Keeler  v.  Trueman,  15  Colo.  143. 

«  Grandjean  v.  Beyl,  78  Neb.  349,  110  N.  W.  1109. 

(263) 


§  180  PEOBATE    AND    ADMINISTRATION.  [Chap.  16 

his  widow  or  heirs,  and  the  executor  or  administrator 
has  nothing  to  do  with  it.43a 

If  he  has  reason  to  believe  any  property,  real  or  per- 
sonal, has  been  fraudulently  transferred  by  the  dece- 
dent, it  should  also  be  included.44 

Land  sold  under  a  contract  should  be  inventoried, 
the  fee  passing  to  the  heirs  or  devisees  subject  to  the 
rights  of  the  vendee  therein.45  If  the  land  is  mort- 
gaged the  amount  of  the  encumbrance  should  be  noted. 

§  180.    What  need  not  be  inventoried. 

A  life  insurance  policy  payable  to  the  widow  or  any 
other  person  passes  immediately  to  such  person,  with- 
out the  intervention  of  a  personal  representative.  He 
has  no  authority  over  it  unless  it  is  payable  to  the 
estate,  in  which  event  it  should  be  inventoried.46 

A  claim  against  an  insurance  company  for  loss  or 
damages  to  buildings  by  fire,  if  occurring  after  the 
death  of  the  decedent,  the  title  to  the  buildings  having 
vested  in  the  heirs  or  legatees,  though  they  have  not 
the  right  of  immediate  possession,  should  not  be  enu- 
merated as  personal  assets,  but  included  in  the  receipts 
from  the  realty.47  If  the  fire  occurred  prior  to  the 
death  of  the  decedent,  a  different  rule  applies,  and  it 
should  be  inventoried. 

<3a  Walker  v.  Ehresman,  79  Neb.  775,  113  N.  W.  218. 

44  Marks  v.  Coats,  37  Or.  611,  62  Pac.  488;  Andrews  v.  Tucker,  7 
Pick.  (Mass.)  770;  In  re  Mills'  Estate,  22  Or.  210,  29  Pac.  443. 

45  Moore  v.  Burrows,  34  Barb.   (N.  Y.)   173;  Teneick  v.  Flagg,  29 
N.  J.  L.  25. 

4«  Douglass  v.  Parker,  84  Me.  522,  24  Atl.  956. 
47  Wyman  v.  Wyman,  26  N.  Y.  253;  Harrison  v.  Harrison's  Admr., 
4  Leigh  (Va.),  371. 

(264) 


Chap.  16]         INVENTORY    AND    APPRAISEMENT.  §  180 

Damages  recovered  in  an  action  of  ejectment,  com- 
ing from  the  realty,  would  naturally  be  included  in 
the  rents  and  profits  therefrom,  and  not  in  the  inven- 
tory, and  any  damages  obtained  from  injuries  to  the 
freehold  would  follow  the  same  rule.48  Damages  for 
lands  taken  under  the  right  of  eminent  domain,  if 
awarded  by  the  judgment  of  a  court  or  commission  be- 
fore the  death  of  the  owner,  are  personal  assets  which 
the  executor  or  administrator  should  include  in  his  in- 
ventory. If  the  land  is  taken  after  his  death,  they 
should  be  accounted  for  as  income  accruing  from  the 
realty.49 

Unpaid  rent  of  realty  accruing  and  due  before  the 
death  of  the  decedent  should  be  accounted  for  as  per- 
sonal assets,  but  that  accruing  thereafter,  as  income 
from  the  realty.50 

A  claim  for  damages  for  causing  the  death  of  the 
decedent  through  negligence  need  not  be  inventoried.51 

Form  No.  75. 
INVENTORY  AND  APPRAISEMENT. 

In  the  County  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

The  following  is  a  true  inventory  of  the  real  estate  and  of  all  the 
goods,  chattels,  credits,  and  effects  of  A.  B.,  deceased,  which  have 
come  into  my  possession  or  knowledge: 

«  Dundas  v.  Carson,  27  Neb.  634,  43  N.  W.  399;  Ford  v.  Livingston, 
70  Hun,  178,  24  N.  Y.  Supp.  412. 

«  Goodwin  v..  Milton,  25  N.  H.  458;  Neal  v.  Knox  &  Lincoln  B. 
Co.,  61  Me.  298. 

50  Leatherwood  v.  Sullivan,  81  Ala.  458. 

61  Chicago,  B.  &  Q.  R.  Co.  v.  Healy,  76  Neb.  783,  111  N.  W.  598. 

(265) 


§  180  PEOBATB    AND   ADMINISTRATION.  [Chap.  16 

REAL  ESTATE. 


Des.  of  Lands 

Sec. 

Twp. 

Range 

Acres 

Value 

BILLS  AND  NOTES. 


Item      |  From  Whom  Due  |  When  Due  |    Int.   |  Amount    [Value 


Account 
Note 

John  Doe 
Wm.  Jones 

Dec.  1,  '00 
Jan.  '03 

8% 
7% 

$    100.00 
1,000.00 

$    108.00 
1,000.00 

GOODS,  CHATTELS,  ETC. 


Description 

Value 

State  of  Nebraska, 

• County, — ss. 

I,  C.  D.,  executor  of  the  last  will  and  testament  of  A.  B.,  deceased, 
do  solemnly  swear  that  the  above  is  a  true  inventory  of  all  the  estate, 
real  and  personal,  of  said  deceased,  so  far  as  the  same  has  come  into 
my  knowledge  or  possession. 

(Signed)     C.  D. 

Subscribed  in  my  presence  and  sworn  to  before  me  this day 

Of :,  19—. 

(Signed)     J.  K., 


County  Judge. 


Form  No.  76. 


PETITION  TO  COMPEL  AN  EXECUTOR  OR  ADMINISTRATOR  TO 
RETURN  AN  INVENTORY 

[Title  of  Cause  and  Court.] 

Your  petitioner,  G.  H.,  respectfully  represents  unto  the  court  that 
he  is  one  of  the  next  of  kin  of  said  A.  B.,  deceased  [is  a  legatee  named 
in  the  will  of  said  A.  B.,  deceased];  that  letters  of  administration 
upon  the  estate  of  said  deceased  [letters  testamentary  upon  the  will] 

were  duly  issued  out  of  and  under  the  seal  of  said  court  on  the 

day  of ,  19 — ,  to  one  C.  D.,  and  that  said  C.  D.  now  ia  the  ad- 

(266) 


Chap.  16]         INVENTORY   AND    APPRAISEMENT.  §  181 

ministrator  of  said  estate  [executor],  and  that,  notwithstanding  that 

more  than days  have  elapsed  since  the  issue  of  said  letters,  said 

C.  D.  has  neglected,  and  still  neglects,  to  file  an  inventory  of  the 
personal  estate  of  the  said  deceased  in  the  county  court,  as  he  is 
required  by  law  to  do. 

Wherefore  your  petitioner  prays  that  a  citation  may  issue  to  the 
said  C.  D.,  executor  as  aforesaid,  commanding  him  to  appear  before 
this  court  and  file  an  inventory  both  of  the  estate  to  be  allowed  the 
widow  of  said  A.  B.,  and  a  general  inventory  as  required  by  law,  and 
for  such  other  and  further  relief  as  may  be  just  and  equitable. 

Dated  this day  of ,  19 — . 

(Signed)     G.  H. 

[Add  verification,  Form  No.  5.] 

Form  No.  77. 
CITATION  TO  ADMINISTRATOR  TO  RETURN  AN  INVENTORY. 

State  of  Nebraska, 
County, — ss. 

To  C.  D.,  Administrator  of  the  Estate  of  A.  B.,  Deceased: 

You  are  hereby  cited  to  appear  before  the  county  court  of  

county,  Nebraska,  at  the  county  courtroom  therein,  on  the day 

of  ,  19 — ,  at  9  o'clock  A.  M.  of  said  day,  then  and  there  to 

return  an  inventory  of  the  goods,  chattels,  credits,  and  effects  of  the 
said  A.  B.,  deceased,  according  to  law,  or  to  show  cause  why  an 
attachment  should  not  issue  against  you. 

Dated  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

§  181.    Failure  of  executor  or  administrator  to  file 

inventory. 

The  failure  of  an  executor  or  administrator  to  file 
an  inventory  within  the  time  required  is  a  sufficient 
cause  for  his  removal  in  the  discretion  of  the  court.52 
Before  proceeding  to  this  extreme  remedy  the  usual 
practice  is  for  a  citation  to  be  issued  on  the  petition 

62  Section  159,  supra. 

(267) 


§  182  PBOBATE    AND   ADMINISTRATION.  [Chap.  10 

of  a  party  interested  in  the  estate  directing  him  to 
show  cause  why  he  has  not  filed  the  same.  A  delay  of 
six  months,  no  efforts  being  made  toward  settling  the 
estate,  would  justify  a  party  in  at  once  petitioning  for 
his  removal  instead  of  directing  him  to  file  it.53 

§  182.    Appointment  of  appraisers. 

All  the  assets  of  the  estate,  both  real  and  personal, 
are  required  by  the  statutes  to  be  appraised,  under 
oath,  by  two  or  more  competent  persons  who  are  ap- 
pointed by  the  court.54  The  usual  practice  in  Nebraska 
is  when  letters  issue  for  the  court,  on  motion  of  the 
attorney  for  the  estate,  to  make  what  is  termed  a  "  gen- 
eral order, ' '  appointing  the  appraisers,  fixing  the  time 
allowed  the  representative  to  settle  the  estate,  the  dates 
for  hearings  on  claims,  and  directing  the  publication 
of  the  notice  to  creditors  in  such  paper  as  may  be  des- 
ignated by  the  executor  or  administrator.55 

In  Oregon  three  appraisers  are  appointed,  but  when 
any  part  of  the  property  is  situated  in  another  county 
than  that  in  which  administration  is  granted,  the  ap- 
praisers thereof  may  be  appointed  by  the  judge  or 
court  of  either  county.  An  oath  is  required  the  same 
as  in  Nebraska.50  Such  appointment  is  usually  made 
on  motion,  but  if  made  in  such  other  county,  a  petition 
may  properly  be  filed,  which  should  show  the  neces- 
sary jurisdictional  facts. 

53  In  re  Barnes'  Estate,  38  Or.  279,  59  Pac.  464;  In  re  Bolander's 
Estate,  38  Or.  493,  63  Pac.  689;  Marks  v.  Coats,  37  Or.  610,  62  Pac. 
488. 

54  Rev.  Stats.,  c.  17,  §  98,   [1362]. 

55  Rev.  Stats.,  c.  17,  §  98,  [1362]. 

56  L.  O.  L.,  §§1179,  1180. 

(268) 


Chap.  16]         INVENTORY    AND    APPRAISEMENT.  §  182 

Form  No.  77a — Oregon. 
PETITION  FOB  APPOINTMENT  OF  APPRAISERS. 

In  the  County  Court  of  County,  Oregon. 

In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

To  the  County  Court  of  County,  Oregon: 

Comes  now  O.  D.,  administrator  of  said  estate,  and  shows  unto  the 
court  that  the  estate  of  said  A.  B.  is  seised  and  possessed  of  property 
in  said  county  of ,  an  inventory  of  which  said  property  so  situ- 
ated in  said  county  of is  presented  herewith,  and  that  no  part 

of  said  property  has  been  appraised  by  appraisers  appointed  by  the 

said  county  court  of  said  county. 

Petitioner  prays  that  appraisers  of  said  estate  be  appointed  in  said 
—  county  as  provided  by  law. 

(Signed)     C.  D. 
[Add  verification.] 

Form  No.  78. 
GENERAL  ORDER. 

State  of  Nebraska, 

County  of , — ss. 

At  a  session  of  the  county  court,  held  at  the  county  courtroom,  in  and 

for  said  county,  in  ,  on   the  day  of  ,  A.  D. 

19—. 

Present  the  Honorable  J.  K.,  County  Judge. 
In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

Whereas,  letters  have  this  day  been  granted  to  as 

of  the  estate  of  A.  B.,  deceased: 

Ordered,  that  six  months  be  allowed  for  creditors  to  present  their 
claims  against  said  estate  for  adjustment  and  allowance,  and  one  year 

be  allowed  said  to  settle  up  said  estate  from  the  day 

of ,  A.  D.  19—. 

And  it  is  further  ordered,  that  E.  F.  and  G.  H.,  disinterested  per- 
sons of  said  county,  Nebraska,  be  appointed  appraisers  of  the 

estate  of  said  deceased. 

And  it  is  further  ordered,  that  notice  be  given  to  the  creditors  of 
said  estate  to  appear  before  me  at  the  county  courtroom,  in  said 

county,  on  .the  day  of  ,  19 — ,  and  on  the  day  of 

,  19 — ,  at  —  o'clock  —  M.,  each  day,  by  publication  in  the 

,  a  newspaper  printed  in  said  county,  four  weeks  successively 

(269) 


§  183  PROBATE    AND   ADMINISTRATION.  [Chap.  16 

prior  to  the day  of ,  19 — ,  and  by  posting  up  notices  to 

said  creditors  in  four  public  places  in  said  county  on  or  before , 

19 — ,  for  the  purpose  of  presenting  their  claims  for  adjustment;  and 

Ordered  further,  that  all  claims  against  said  estate  not  presented  on 
or  before  ,  19 — ,  shall  be  and  remain  forever  barred. 

(Seal)  (Signed)     J.  K., 

County  Judge. 

[Posting  notices  to  creditors  is  not  required,  and  is  unnecessary, 
though  a  usual  practice.] 

Form  No.  79. 
APPOINTMENT  OF  APPRAISERS. 

State  of  Nebraska, 
• County, — ss. 

To  C.  D.  and  E.  F.,  of  Said  County: 

You  are  hereby  appointed  to  appraise  on  oath  the  estate  and  effects 
of  A.  B.,  late  of  said  county,  deceased,  which  may  be  in  said  county, 
and  when  you  have  performed  that  service  you  are  required  to  deliver 

this  order  and  your  doings  in  pursuance  thereof  to  executor 

[administrator]    of  said  deceased. 

Given  under  my  hand  this day  of ,  19 — . 

(Signed)     J.  K., 

County  Judge. 
Form  No.  80. 
OATH  OF  APPRAISERS. 

I  do  solemnly  swear  that  I  will  well  and  truly  appraise  each  item 
of  the  estate  and  effects  of  A.  B.,  deceased,  included  in  the  inventory 
thereof,  at  its  true  value  in  money,  and  deliver  the  same,  duly  veri- 
fied, together  with  my  appointment,  to  L.  M.,  executor  [administrator] 
of  said  estate.  So  help  me  God. 

(Signed)     C.  D. 

§  183.    Duties  of  appraisers. 

The  appraisers  should  set  down  opposite  each  item, 
in  distinct  figures,  the  value  of  the  same  in  money,  and 
deliver  the  same  when  certified  to  the  executor  or 
administrator.67  In  fixing  these  values,  they  should 

67  Rey.  Stats.,  c.  17,  §  99,  [1363]. 

(270) 


Chap.  16]        INVENTOBY   AND   APPBAISEMENT.  §  183 

be  governed  by  a  sound  discretion.  The  valuation 
which  they  should  place  upon  the  property  is  not  what 
it  would  sell  for  at  forced  sale,  but  its  fair  and  reason- 
able market  value.  Bonds,  corporate  stocks,  and  other 
investment  securities  should  be  appraised  at  what  they 
are  quoted  on  the  market  or  stock  exchange,  whether 
above  or  below  par.  Debts  or  choses  in  action  should 
be  appraised  at  that  sum  which  in  the  judgment  of  the 
appraiser  may  be  realized  in  an  action  at  law.58 
Accrued  interest  up  to  the  date  of  the  inventory  should 
be  estimated,  when  practicable.59  When  any  of  the 
property  is  encumbered  by  mortgage,  the  amount  of 
the  mortgage  lien,  as  near  as  the  same  can  be  esti- 
mated, may  be  deducted  from  the  value  of  the  prop- 
erty so  mortgaged,  and  the  balance  put  down  as  the 
interest  of  the  estate  in  the  property.  If  any  of  the 
debts  due  the  estate  are  secured  by  chattel  or  real 
estate  mortgage,  this  fact  should  be  considered  in 
making  the  appraisement,  and  the  estate  given  the 
additional  benefit  which  would  accrue  by  reason  of 
such  security.  Such  security  or  collateral  vests  in  the 
executor  or  administrator  to  the  extent  of  the  lien  or 
interest  he  may  have  in  them  by  reason  of  the  debt 
they  were  given  to  secure.60 

The  appraiser's  certificate  should  be  indorsed  upon 
the  inventory. 

W  L.  O.  L.,  §  1181. 

»  Pease  v.  Walker,  20  Wis.  803;  Storer  v.  Blake,  31  Me.  289. 

W  Sain  v.  Bailey,  97  N.  C.  566. 

(271) 


i§  184,  185      PROBATE    AND    ADMINISTRATION.          [Chap.  16 

Form  No.  81. 
CERTIFICATE  OF  APPRAISERS. 

We,  C.  D.  and  E.  F.,  appraisers  appointed  by  the  county  court  of 
county,  Nebraska,  having  first  taken  the  oath  required  by  law, 


do  hereby  certify  that  we  have  appraised  the  personal  estate  and 
effects  in  the  foregoing  inventory  contained,  and  have  set  opposite 
to  each  item  therein,  distinctly  in  figures,  the  value  of  the  same  in 
money. 

(Signed)     C.  D. 
E.  F. 

§  184.    Inventory  of  administrator  de  bonis  non. 

An  administrator  de  bonis  non  should  make  and  file 
his  inventory  in  the  same  manner  as  an  original  rep- 
resentative. It  must  include  all  assets  collected  by 
the  predecessor  and  not  converted  into  money,  and 
also  the  amount  due  from  such  predecessor.61  Where 
an  accounting  has  previously  been  had  and  it  appeared 
that  he  was  indebted  in  excess  of  his  bond,  his  sole 
surety  who  was  appointed  his  successor  must  charge 
himself  with  the  full  amount  of  the  penalty  of  the 
bond.62 

§  185.    Inventory  not  conclusive. 

The  inventory  is  the  basis  of  the  administration 
account.  It  is  not  conclusive  or  binding  on  either  the 
representative  or  other  parties  interested  in  the  estate, 

«l  Rev.  Stats.,  c.  17,  §§86,  257,  [1350],  [1521];  Gatch  v.  Simpson, 
40  Or.  96,  66  Pac.  688;  Davis  v.  Clark,  58  Kan.  54,  49  Pac.  665.  For 
:he  method  of  ascertaining  the  amount  due,  see  §  428,  post. 

62  Jacobs  v.  Morrow,  21  Neb.  233,  31  N.  W.  739;  Brown  v.  Jacobs' 
Estate,  24  Neb.  714,  40  N.  W.  137. 

(272) 


Chap.  16]         INVENTOBY    AND    APPRAISEMENT.  §  185 

but  merely  prima  facie  evidence  of  the  amount  and 
value  of  the  real  and  personal  estate  it  enumerates.63 

If  after  filing  the  inventory  the  executor  or  admin- 
istrator learns  of  property  not  included,  it  is  his  duty 
to  make  an  inventory  thereof  and  cause  the  same  to  be 
appraised  in  the  same  manner  as  that  in  the  first  in- 
ventory.64 

63  Fletcher  v.  Fletcher,  80  Neb.  156,  119  N.  W.  232;  Morrill  v. 
Foster,  33  N.  H.  379;  Conover's  Exrs.  v.  Conover,  1  N.  J.  Eq.  403; 
Lynch  v.  Divan,  66  Wis.  490,  29  N.  W.  213;  McBabb  v.  Wixom,  7  Nev. 
163. 

M  L.  O.  L.,  §  1184;  In  re  Conaer's  Estate,  40  Or.  142,  66  Pae.  607. 
18— Pro.  Ad.  (273) 


CHAPTER  XVII. 

ALLOWANCES  FOR  THE  SUPPORT  OF  THE  FAMILY. 

§  186.  Allowances  of  Specific  Articles. 

187.  Persons  Entitled  to  Allowance. 

188.  Nature  and  Object  of  the  Allowance. 

189.  How  Allowance  Barred. 

190.  Amount  of  Allowance. 

191.  Payment  of  Allowance. 

192.  Allowance — How  Obtained. 

§  186.    Allowances  of  specific  property. 

The  exempt  property  and  other  property  of  the  value 
of  two  hundred  dollars,  which  together  with  the  house- 
hold furniture  and  personal  belongings  pass  to  the 
surviving  spouse  and  children  of  a  decedent  whether 
he  was  testate  or  intestate,1  are  in  the  nature  of  pro- 
visions for  the  support  of  the  family,  in  addition  to 
other  appropriations  allowed  by  a  decree  of  the  county 
court,  and  must  be  obtained  by  application  in  the  same 
manner.  While  their  right  to  this  property  is  abso- 
lute, actual  possession  by  them  is  necessary,  and 
failure  to  apply  for  them  waives  the  right  to  their 
possession.2  Permitting  the  family  to  retain  such 
property  is  the  usual  practice,  but  in  all  cases,  at  some 
stage  in  the  proceedings,  an  order  should  be  made 
formally  assigning  it  to  them. 

In  Oregon  wearing  apparel,  household  furniture  and 
exempt  property  only  pass  to  the  widow  and  minor 
children.3 

1  Section  443,  post. 

2  In  re  Bayer's  Estate,  95  Neb.  488,  115  N.  W.  1030. 
8  L.  O.  L.,  5  1233. 

(274) 


Chap.  17]   ALLOWANCES  FOB  SUPPORT  OF  FAMILY.   §  187 

§  187.    Persons  entitled  to  an  allowance. 

The  county  court  has  power  to  grant  to  the  widow 
and  minor  children,  constituting  the  family  of  the  de- 
cedent, suitable  and  necessary  allowances  for  their 
support  pending  administration,  except  where  such 
allowance  to  a  widow  is  barred  by  her  own  act,4  and 
the  surviving  husband  of  an  intestate  is  entitled  to  an 
allowance  for  his  support  the  same  as  a  widow.  There 
is  no  statute  or  rule  of  the  common  law  imposing  on 
the  estate  of  a  testatrix  the  duty  of  supporting  a  sur- 
viving husband.  The  allowance  ceases  after  the  shares 
of  a  testator's  estate  are  assigned  to  the  devisees  and 
legatees,  and  with  the  assignment  of  the  personal 
estate  of  an  intestate,  or  in  one  year  if  the  estate  is  not 
settled  within  that  period.5 

A  like  allowance  to  the  widow  and  minor  children, 
according  to  their  circumstances  and  condition  in  life, 
where  the  property  is  sufficient  to  pay  the  same,  to- 
gether with  the  debts  and  administration  charges,  is 
given  them  by  the  Oregon  statute.6 

Children  under  fourteen  years  of  age  who  are  with- 
out parents,  when  the  last  surviving  parent  died  intes- 
tate, are  entitled  to  their  support  from  the  estate  of 
the  last  survivor  which  their  father  or  mother  would 
have  inherited,  if  living,  until  they  attain  the  age  of 
fourteen.7  Minor  children  are  entitled  to  an  allowance 
for  their  support  from  their  father's  estate,  though 

4  Section  189,  post. 

6  Eev.  Stats.,  c.  17,  §§3,  51,  [1267],  [1316]. 

•  L.  O.  L.,  §  1235. 

T  Eev.  Stats.,  c.  17,  §  3,  [1267]. 

(275) 


§  188  PROBATE    AND    ADMINISTRATION.  [Chap.  17 

their  mother  may  have  an  estate  of  her  own,  the  mother 
having  charge  of  procuring  and  disbursing  the  same.8 

§  188.    Nature  and  object  of  allowance. 

The  right  of  the  widow  to  her  support  for  a  limited 
time  after  the  death  of  her  husband  is  of  common-law 
origin,  as  is  also  the  right  of  the  minor  children.  The 
purpose  of  the  statute  which,  except  so  far  as  the  sur- 
viving husband  is  concerned,  is  declaratory  of  the 
common  law,  is  to  provide  means  of  support  pending 
administration.9 

In  Nebraska  it  does  not  depend  upon  the  solvency 
of  the  estate,  nor  does  it  appear  to  be  absolute,  but 
depends  largely  on  the  discretion  of  the  court.10 

In  Oregon  it  is  treated  as  an  absolute  right  only 
when  the  estate  is  solvent,  unless  barred  by  some  act 
of  the  widow.11 

If  the  widow  is  possessed  of  an  estate  in  her  own 
right  and  a  regular  income  sufficient  for  her  support 
in  accordance  with  her  previous  circumstances  and 
conditions,  a  court  would  be  justified  in  declining  to 
grant  it.12 

8  Thompson  v.  Thompson's  Admr.,  51  Ala.  493;  Walla  v.  Walla,  41 
Miss.  657. 

»  Newans  v.  Newans,  79  Iowa,  32,  44  N.  W.  213. 

10  Bonacum  v.  Manning,  85  Neb.  60,  122  N.  W.   711,  in  which  an 
insane  widow   confined  in  a  state   asylum  for   the  insane  and    conse- 
quently supported  by  the  state  was  held  not  entitled  to  an  allowance 
on  application  of  her  guardian. 

11  In  re  Dekum's  Estate,  28  Or.  99,  41  Pac.  159. 

12  Kersey   v.   Bailey,   52   Me.    198;    Hollenbeck   v.   Pixley,   3    Gray 
(Mass.),  521. 

(276) 


Chap.  17]   ALLOWANCES  FOB  SUPPORT  OF  FAMILY.   §  189 

§  189.    How  allowance  barred. 

The  right  of  a  surviving  husband  or  wife  to  an  allow- 
ance for  support  may  be  barred  by  an  antenuptial 
agreement,  provided  there  are  no  minors,  issue  of  the 
marriage,  surviving,13  and  by  express  contract  exe- 
cuted after  marriage.14  The  right  of  the  widow  is 
barred  by  her  election  to  accept  the  provisions  of  the 
will  of  her  husband  which  are  given  her  in  lieu  of  all 
allowances  and  appropriations  the  law  would  give  her. 
She  may  elect  to  take  under  the  statute,  but  when  she 
has  once  decided  to  take  under  the  terms  of  the  will, 
she  cannot  ask  for  an  allowance  when  such  terms  ex- 
pressly bar  her  of  that  right.15  It  has  been  held  that 
an  unexplained  delay  until  after  the  expiration  of  the 
time  for  which  the  allowance  could  be  granted,  and 
until  after  a  partial  distribution  of  the  estate  has  been 
made,  would  operate  as  an  estoppel.16 

It  is  not  barred  by  a  release  of  her  distributive  share 
in  her  husband's  estate,  unless  by  express  intention.17 
The  question  whether  a  widow  is  barred  of  her  allow- 
ance by  willful  misconduct  and  a  violation  of  the  com- 
mon rules  of  morality  and  propriety  is  one  on  which 
there  is  a  diversity  of  opinion.  It  is  held  in  North 
Carolina  that  such  conduct  is  an  absolute  bar.18  In 
Massachusetts,  the  court  considers  such  misconduct  an 
element  to  be  taken  into  consideration  in  fixing  the 
amount,  or  in  changing  it  after  it  has  once  been  fixed, 

13  Reiger  v.  Schaible,  81  Neb.  58,  116  N.  W.  953. 
n  S;  eo'lel's  Appeal,  107  Pa.  18. 
15  Godman  v.  Converse,  43  Xeb.  463,  61  N.  W.  756. 
13  Miller  v.  Miller,  82  111.  463. 

17  Pulling  v.  Durfee,  35  Mich.  34,  48  N.  W.  48. 

18  Cook  v.  Sexton,  79  N.  C.  305. 

(277) 


§  190  PROBATE    AND   ADMINISTRATION.  [Chap.  17 

and  if,  under  all  the  circumstances  surrounding  the 
case,  it  seems  that  the  ends  of  justice  will  be  best  sub- 
served by  granting  such  an  allowance,  or  fixing  the 
amount  at  a  lower  rate  than  originally  determined,  the 
court  has  authority  to  do  so.19 

The  right  of  minor  children  to  support  cannot  be 
waived  by  any  act  of  the  surviving  parent.20  Aban- 
donment of  the  wife  by  the  husband,  whether  with  or 
without  cause,  does  not  work  a  forfeiture,  and  in  no 
way  affects  her  absolute  interests  in  his  property.21 

The  allowance  for  the  support  of  the  widow  alone 
abates  with  her  death.22  If  she  have  minor  children, 
the  issue  of  the  decedent,  her  death  will  not  abate  the 
payment  of  the  allowance.  It  would  go  to  her  per- 
sonal representatives  for  the  benefit  of  the  minor  chil- 
dren. The  court  would  have  the  right  to  reduce  the 
amount  or  change  the  directions  of  its  payment  upon 
a  proper  cause  shown.23 

§  190.    Amount  of  allowance. 

The  amount  of  the  allowance  rests  peculiarly  within 
the  discretion  of  the  court,  depending  upon  the  size  of 
the  estate,  the  conditions  and  surroundings  of  the 
family,  the  individual  property  possessed  by  them, — 
not,  however,  including  their  share  in  the  estate, — and 

19  Slack  v.  Slack,  123  Mass.  443. 

20  Godman  v.  Converse,  43  Neb.  463,  61  N.  W.  756. 

21  Clark  v.  Clement,  71  N.  H.  5,  51  Atl.  256;  Welch  v.  Welch,  181 
Mass.  37,  62  N.  E.  982;  Sammona  v.  Higbie's  Estate,  103  Minn.  448, 
115  N.  W.  265. 

22  Tarbox  v.  Fisher,  50  Me.  236;  Simpson  v.  Cureton,  97  N.  C.  112, 
2  S.  E.  668. 

23  Borah's  Admr.  v.  Dorah's  Exr.,  4  Ohio  St.  92;  Bane  v.  Wick,  14 
Ohio  St.  505. 

(278) 


Chap.  17]   ALLOWANCES  FOB  SUPPORT  OP  FAMILY.   §  191 

the  manner  and  style  of  living  of  people  of  their  social 
rank  and  station,24  it  not  being  in  any  manner  depend- 
ent upon  the  final  share  of  either  widow  or  children, 
and  is  not  a  charge  against  such  final  share.25  The 
county  judge  should  not  lose  sight  of  the  fact,  in  de- 
ciding what  is  a  proper  amount,  that  it  is  not  the  pur- 
pose of  the  law  to  furnish  the  family  with  funds  to 
use  in  business  ventures,  for  that  would  defeat  the 
will  and  the  statutes  of  distribution,  but  enough  to 
support  them  properly.  The  amount  fixed  is  not  con- 
sidered a  permanent  one,  and  the  court  has  authority, 
upon  cause  being  shown  by  any  person  interested  in 
the  estate,  to  modify  the  allowance  as  the  circum- 
stances of  the  parties  and  condition  of  the  estate  may 
require,26  upon  notice  given  in  such  manner  as  the 
court  may  require,  but  such  order  is  not  retroactive, 
applying  only  to  future  amounts.27 

If  the  estate  is  insolvent  the  allowance  should  be 
very  moderate,  sufficient  only  for  actual  necessities  of 
the  family.28 

§  191.    Payment  of  allowance. 

The  allowance  for  the  support  of  the  family  of  a 
decedent  pending  administration  ranks  as  a  debt  of 
the  estate,  but  with  preference  over  all  claims  of  gen- 

24  Freeman  v.  Washtenaw  Probate  Judge,  79  Mich.  390,  44  N.  W. 
856. 

25  Woodbury  v.  Woodbury,  58  X.  H.  44;  Foster  v.  Foster,  36  N.  H. 
437;  Hollenbeck  v.  Pixley,  3  Gray  (Mass.),  521. 

2«  James'  Estate  v.  O'Neil,  70  Neb.  132,  97  N.  W.  22;  Fletcher  v. 
Fletcher,  83  Neb.  156,  119  N.  W.  232. 

27  Baker  v.  Baker,  51  Wis.  538,  8  N.  W.  289. 

28  Brazer  v.   Dean,   15   Mass.   183;   Johnson   v.   Corbett,   11   Paige 
(Is.  Y.),  265. 

(279) 


§  192  PROBATE   AND   ADMINISTRATION.  [Chap.  17 

eral  creditors,29  and  is  payable  only  from  such  assets 
as  are  liable  for  such  claims,30  but  is  of  course  subor- 
dinate to  demands  secured  by  specific  liens.31  It 
should  be  paid  from  the  personal  estate  and  income 
from  real  estate;  if  decedent  left  a  will,  from  assets 
designated  for  that  purpose,  if  a  designation  is  made,32 
and  if  the  personal  estate  is  insufficient,  it  is  a  charge 
upon  the  realty  of  both  testate  and  intestate  estates.33 

§  192.    Allowance — How  obtained. 

The  right  of  a  surviving  spouse  or  minor  children 
to  an  allowance  from  a  decedent's  estate  is  not  a  vested 
one.  Until  there  is  a  judicial  determination  awarding 
the  same,  the  amount  is  contingent,  and  no  right  can 
vest  until  such  amount  is  determined.34  Unless  the 
applicant  applies  before  the  final  order  of  distribution 
is  made,  all  claim  thereto  is  waived.  The  application 
should  therefore  be  by  sworn  petition  to  the  county 
court.  It  may  be  filed  at  any  time  before  distribution, 
and  should  be  before  any  part  of  the  assets  of  the 
estate  are  assigned  or  disposed  of  to  the  heirs  or  lega- 
tees,35 but  the  court  cannot  well  act  until  the  inventory 
is  filed  or  he  has  some  knowledge  of  the  amount  of  the 
indebtedness  of  the  estate. 

A  citation  may  then  issue  and  service  had  as  the 
court  may  direct.  The  court  acquires  jurisdiction  by 

29  Rev.  Stats.,  c.  17,  §  3,  [1167],  [1493]. 

so  Hadsall  v.  Hadsall,  82  Neb.  587,  118  N.  W.  331. 

31  In  re  Estate  of  Dennis,  67  Iowa,  110,  24  N.  W.  746. 

32  Comp.  Stats.,  c.  23,  §  153. 

33  Fletcher  v.  Fletcher,  83  Neb.  156,  119  N.  W.  232. 

34  Zunkel  v.  Colson,  109  Iowa,  695,  81  N.  W.  175. 

35  Estate  of  Henry,  65  Mich.  551,  27  N.  W.  351. 

(280) 


Chap.  17]       ALLOWANCES  FOB  SUPPORT  OF  FAMILY.       §  192 

the  filing  of  the  petition,  and  service  of  the  same  is 
not  necessary.36  If  there  appears  to  be  an  intention 
to  contest  the  application,  a  time  should  be  set  for  a 
hearing  and  notice  given ;  but  where  the  amount  asked 
for  appears  a  reasonable  one,  considering  the  value  of 
the  estate  and  the  standing  and  circumstances  of 'the 
parties,  especially  where  the  executor  or  administrator 
consents,  it  may  be  entered  at  once. 

If  the  assets  are  ample,  the  right  of  the  court  to 
make  the  allowance  to  the  widow,  it  is  held  in  Oregon, 
cannot  be  controverted.37 

About  the  only  defenses  available  on  appeal  are  that 
the  petitioner  is  not  the  widow,  or  that  she  is  barred 
by  an  antenuptial  agreement  or  by  taking  under  the 
terms  of  the  will  when  its  provisions  were  in  lieu  of 
such  allowance.  The  amount  rests  so  largely  in  the 
discretion  of  the  court  that  it  will  be  rarely  disturbed.38 
The  usual  practice  is  to  apply  at  the  same  time  for 
an  order  setting  out  the  specific  property  to  which  she 
is  entitled,  and  for  an  order  to  be  made  covering  both 
matters.  Where  no  allowance  had  been  granted  her 
previous  to  her  husband's  death,  which  occurred  be- 
fore administration  was  completed,  though  proceed- 
so  Fletcher  v.  Fletcher,  83  Neb.  156,  119  N.  W.  232;  Carlin  T.  Sewall, 
86  Neb.  367,  125  N.  W.  606. 

37  In  re  Dekum's  Estate,  28  Or.  99,  41  Pac.  159. 

38  Piper  v.  Piper,  34  N.  H.  563;  Freeman  v.  Washtenaw  Probate 
Judge,  79  Mich.  3&0,  44  N.  W.  856.     In  Re  Dekum's  Estate,  supra,  it  was 
held  that  where  a  widow  made  an  agreement  for  a  valuable  considera- 
tion to  receive  monthly  payments  for  her  support  in  lieu  of  dower,  and 
subsequently  obtained  an  order  for  an  allowance  from  the  court,  the 
order  not  containing  that  provision,  her  refusal  to  receipt  as  for  dower 
would  not  justify  the  executor  in  declining  to  make  the  payments. 

(281) 


§  192  PROBATE    AND   ADMINISTRATION.  [Chap.  17 

ings  were  pending,  the  right  to  such  allowance  does  not 
pass  to  her  estate.39 

The  application  for  an  allowance  to  minor  children 
for  their  support  should  be  by  their  guardian.  Service 
of  citation  is  had  in  the  same  manner  as  in  the  case 
of  a  widow. 

Form  No.  82. 

PETITION  OF  WIDOW  FOB  ALLOWANCE  AND  ASSIGNMENT  OP 
PERSONAL  PEOPERTY. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
she  is  the  widow  of  A.  B.,  deceased,  and  is  thirty-five  years  of  age; 
that  the  said  A.  B.  died  leaving  the  following  named  minor  children 
dependent  upon  said  estate  for  their  support  [give  names  and  ages 
of  all  the  children  under  age],  who,  together  with  your  petitioner, 
constitute  one  family;  that  your  petitioner  has  no  personal  estate 
or  income  from  personal  estate  [if  possessed  of  property,  give  amount, 
character,  and  income  therefrom],  and  has  not  sufficient  means  to 
support  said  family;  that  the  value  of  the  estate  of  the  said  A.  B. 

is  estimated  at  about  the  sum  of  dollars  ($ ),  of  which 

dollars  is  personal  property,  and  the  balance  real  estate;  that 

the  rents  of  said  real  estate  are  about  the  sum  of  dollars  per 

annum;  that  the  debts  against  said  estate,  so  far  as  they  can  be 

ascertained  by  your  petitioner,  are  about  the  sum  of dollars 

($ ),  and  the  net  value  of  said  estate  is  about  the  sum  of 

dollars  ($ ) ;  that  your  petitioner  has  selected  articles  of  apparel 

and  ornament  and  the  household  furniture  of  the  deceased  and  prop- 
erty not  exceeding  in  value  the  sum  of  dollars  ($ ), 

and  other  personal  property  not  exceeding  in  value  the  sum  of  

dollars  ($ ),  to  all  of  which  she  is  entitled  by  law.  A  list  of  the 

articles  so  selected,  together  with  the  valuation  thereof  as  fixed 
by  the  appraisers  of  said  estate,  is  hereto  attached,  marked  "Ex.  A," 
and  made  a  part  hereof. 

Your  petitioner  therefore  prays  that  due  notice  of  the  pendency 
of  this  petition  may  be  given  to  all  parties  interested  in  said  estate, 

39  In  re  Bayer's  Estate  (Neb.),  145  N.  W.  1029;  Ex  parts  Dunn,  63 
N.  C.  137. 

(282) 


Chap.  17]       ALLOWANCES  FOB  SUPPORT  OF  FAMILY.       § 

and  that  the  court  may  fix  a  day  for  the  hearing  on  the  same,  and 
that,  on  the  hearing,  the  court  will  assign  your  petitioner  the  house- 
hold furniture  and  other  personal  property  selected  as  aforesaid,  and 

make  an   allowance   of  dollars  per  month   for   the  support   of 

your  petitioner  and  her  said  family,  the  children  of  said  A.  B. 

Dated  this day  of ,  19—. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  83. 

PETITION  FOB  ALLOWANCE  FOR  SUPPORT  OF  MINOR  CHIL- 
DREN. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  G.  H.,  respectfully  represents  unto  the  court  that 

on  the  day  of  ,  19 — ,  letters  of  guardianship  were  issued 

to  him  out  of  and  under  the  seal  of  said  court  upon  the  estates  of 
C.  B.  and  F.  B.,  minors;  that  said  C.  B.  is  of  the  age  of  five  years, 
and  F.  B.  of  the  age  of  three  years;  that  said  minors  are  children  of 
said  A.  B.  and  M.  B.;  that  said  M.  B.  was  the  widow  of  said  A.  B.; 

that  said  M.  B.  departed  this  life  on  the  day  of  ,  19 — ; 

that  the  said  C.  B.  and  the  said  F.  B.  are  possessed  of  no  estate  of 
either  real  or  personal  property  except  their  interest  as  heirs  [devisees, 
legatees]  in  the  estate  of  said  A.  B.,  and  have  no  means  which  can  be 
used  for  their  support  except  their  interest  as  aforesaid;  that  said 

estate  is  of  the  estimated  value  of  dollars  ($ )  after  all 

debts  against  the  same  have  been  paid.  [If  large  amount  of  debts 
have  been  allowed,  state  amount  of  same,  amount  of  personal  estate, 
amount  of  real  estate,  probable  income  therefrom.] 

Your  petitioner  therefore  prays  that  a  time  may  be  fixed  for  the 
hearing  of  this  petition,  and  notice  thereof  be  given  to  the  adminis- 
trator of  said  estate  of  said  A.  B.,  deceased,  and  upon  the  hearing 
thereof  the  court  will  award  to  your  petitioner  the  sum  of  dol- 
lars per  month  for  the  support  and  maintenance  of  said  C.  B.,  and 

until  he  shall  arrive  at  the  age  of  years  and  the  sum  of  

dollars  per  month  for  the  support  of  said  F.  B.  until  she  shall  arrive 
at  the  age  of years. 

Dated  this  day  of  ,  19 — . 

(Signed)     G.  H. 

[Add  verification,  Form  No.  5.] 

(283) 


§  192  PEOBATE    AND    ADMINISTRATION.  [Chap.  17 

Form  No.  84. 

NOTICE    OF    APPLICATION    FOR    ALLOWANCE    AND    ASSIGN- 
MENT OF  PERSONAL  PROPERTY. 

State  of  Nebraska, 

• County, — ss. 

To  All  Persons  Interested  in  the  Estate  of  A.  B.,  Deceased: 

You  are  hereby  notified  that  on  the  day  of  -      — ,   19 — , 

C.  D.,  widow  of  A.  B.,  deceased,  filed  her  petition  in  the  county  court 
of  county,  Nebraska,  praying  for  an  allowance  from  said  es- 
tate for  the  support  of  herself  and  the  minor  children,  constituting 
the  family  of  said  deceased,  and  for  the  assignment  to  her  of  per- 
sonal property  of  which  she  is  given  an  absolute  right  by  the  terms 
of  the  statute,  and  that  said  petition  will  be  heard  at  the  county  court 

room  in  said  county  on  the  day  of  ,   19 — ,  at  9  o'clock 

A.  M. 

It  ig  further  ordered  that  notice  of  the  pendency  of  this  petition 
be  given  all  persons  interested  in  said  estate  by . 

Dated  this day  of ,  19—. 

(Signed)     J.  K., 

County  Judge. 
Form  No.  86. 
ORDER  GRANTING  ALLOWANCE  AND  ASSIGNING  PERSONAL 

PROPERTY  TO  WIDOW. 
[Title  of  Cause  and  Court.] 

And  now,  on  this  day  of  ,  19 — ,  this  cause  came  on 

for  hearing  upon  the  petition  of  C.  D.,  widow  of  said  A.  B.,  for  an 
allowance  for  the  support  of  herself  and  C.  B.  and  E.  B.,  minor  chil- 
dren of  said  A.  B.,  pending  the  settlement  of  said  estate,  and  for  the 
assignment  to  her  of  the  personal  property  which  is  given  her  abso- 
lutely by  the  terms  of  the  statute.  The  court  finds  that  notice  of 
the  pendency  of  said  petition  and  of  said  hearing  have  been  given 
by  [state  how  notice  given],  and,  it  satisfactorily  appearing  that  such 
allowance  is  necessary  [if  executor  or  administrator  appears  and  con- 
sents to  the  allowance,  so  state],  it  is  therefore  ordered  that  the  sum 

of  dollars,  payable  ,  be  allowed  for  the  support  of  said 

C.  B.,  E.  B.,  and  C.  D.  during  the  time  limited  for  the  settling  of  said 
estate,  or  until  the  further  order  of  the  court;  and  it  is  further  ordered 
that  the  articles  of  wearing  apparel  and  ornament  and  household  furni- 
ture of  the  deceased,  together  with  the  other  personal  property  to 
which  C.  D.,  as  widow  of  said  A.  B.,  is  absolutely  entitled  by  law  as 
per  schedule  "A,"  attached  to  her  said  petition,  copy  of  which  is 
hereto  attached  and  made  a  part  hereof,  be  assigned  and  set  apart  to 

her. 

(Signed)     J.  K., 

(284)  County  Judge. 


CHAPTER  XVIII. 

COLLECTION  OF  ASSETS. 

5  193.     Eight  of  Executor  or  Administrator  to  Possession  of  Personal 
Property. 

194.  Right  to  Assets  Before  Grant  of  Letters. 

195.  Executor  De  Son  Tort. 

196.  Limitation   on  Authority  of  Executor  or  Administrator  Over 

Ass.  ts. 

197.  Proceedings  to  Require  Disclosure  of  Assets. 

198.  Examination — Nature  of  Proceedings. 

199.  Possession  of  Real  Estate. 

200.  Recovery  of  Real  Estate  by  Heir  or  Devisee. 

201.  Survival  of  Causes  of  Action. 

202.  Revivor  of  Actions  on  Death  of  Plaintiff. 

203.  Actions  for  Causing  Death  of  Decedent. 

204.  Mortgages. 

205.  Suits — How  Brought. 

206.  Degree  of  Diligence  Required  of  Executor  or  Administrator  in 

Reducing  Assets  to  Possession. 

207.  Special  Proceedings  to  Recover  Personalty. 

208.  Compromising  Debts  With  Leave  of  the  Court. 

209.  Right  to  Compromise  Debts  Without  Leave  of  the  Court. 

210.  Right  to  Submit  Claim  to  Arbitration. 

211.  Right  to  Adjust  or  Compromise  Real  Estate  Contracts. 

212.  Actions  to  Recover  Assets  Transferred  in  Fraud  of  Creditors. 

213.  Suit  by  Creditor. 

214.  Indemnity  Bond. 

215.  Nature  of  the  Action. 

216.  Right  of  Heir  or  Legatee  to  Collect  Assets. 

217.  Debt  of  Executor  or  Administrator  to  the  Estate. 

§  193.    Right  of  executor  or  administrator  to  posses- 
sion of  personal  property. 

When  a  man  dies,  the  ownership  of  his  personal 
property,  but  not  the  right  to  its  immediate  possession, 
passes  to  his  heirs  or  legatees,  subject  with  some  ex- 
ceptions to  the  payment  of  his  debts  and  certain 

(285) 


§  194  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

charges  against  the  estate.  Their  title  is  traced 
through  the  executor  or  administrator,  and  it  is  only 
the  residue  of  the  estate  remaining  after  the  payment 
of  such  debts  and  charges  which  passes  to  them. 

The  grant  of  letters  testamentary  or  of  administra- 
tion gives  to  the  recipient,  as  a  trustee  or  representa- 
tive of  all  parties  interested  therein,  an  immediate 
right  to  the  possession  of  all  of  the  personal  property.1 

There  is  one  apparent  exception  to  this  rule.  Where 
a  party  has  an  equitable  title  to  the  property,  either 
under  a  valid  contract  of  bailment2  or  an  executory 
contract  for  its  purchase,3  or  a  contract  to  bequeath 
the  same,4  the  representative  is  not  always  entitled 
to  take  it  into  his  custody.  In  the  first  case  he  is  en- 
titled to  the  property  after  the  charges  against  it  have 
been  satisfied,  in  the  case  of  a  contract  to  purchase  he 
may  enforce  the  lien,  if  he  has  one,  for  the  balance  of 
the  purchase  price  due  thereon,5  and  in  the  latter  case 
he  is  only  entitled  to  possession  if  it  is  needed  for  the 
purpose  of  paying  the  debts.6 

§  194.    Right  to  assets  before  grant  of  letters. 

If  a  special  administrator  has  been  appointed,  the 
right  to  the  possession  of  the  assets  is  vested  in  him 

1  Casto  v.  Murray,  49  Or.  57,  81  Pac.  388;  In  re  Roach's  Estate,  50 
Or.    179,   92   Pac.   118;   Hillman   v.   Young,   64   Or.   79,    127   Pac.   795; 
Thorsen  v.  Hooker,  57  Or.  578,  109  Pac.  388;  L.  O.  L.,  §  1185;  Beecher 
v.  Buckingham,  18  Conn.  110;  Valentine  v.  Jackson,  9  Wend.  (N.  Y.) 
302;  Lawrence  v.  Wright,  23  Pick.  (Mass.)   128;  Gilkey  v.  Hamilton,  22 
Mich.  253. 

2  L.  O.  L.,  §  1185. 

3  Howes  v.  Whipple,  41  Ga.  322. 

4  Koslowski  v.  Newman,  74  Neb.  704,  105  N.  W.  295;  McKinnon  v. 
McKinnon,  56  Fed.  409. 

5  Howes  v.  Whipple,  41  Ga.  322. 

«  Koslowski  T.  Newman,  74  Neb.  704,  105  N.  W.  295. 

(286) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  195 

before  the  issue  of  regular  letters.7  If  no  such  ap- 
pointment has  been  made,  during  the  time  between  the 
death  of  the  decedent  and  the  issue  of  letters  testa- 
mentary or  of  administration,  the  title  to  the  effects 
remains  in  abeyance,  and  then  vests  in  the  personal 
representative  in  trust,  in  his  official  capacity,  as  of 
the  date  of  the  death  of  the  decedent,  and  he  is  entitled 
to  the  possession  of  such  assets  and  the  management 
of  such  property  for  the  purposes  of  such  trust.8 

When  no  special  administrator  has  been  appointed, 
the  near  relatives  or  friends  of  a  deceased  person  gen- 
erally take  charge  of  his  estate  immediately  after  his 
death,  and  whoever  thus  comes  into  the  possession  of 
any  such  personal  property,  or  the  rents  or  profits  of 
the  real  estate,  or  assumes  control  over  the  same,  is  re- 
sponsible therefor  to  the  personal  representative  as 
soon  as  letters  issue  to  him,  and  should  at  once  place 
him  in  possession.  Any  other  rule  would  place  the 
personal  property  of  a  decedent  "beyond  reach,"  be- 
fore administration  was  granted,  and  where  no  one 
could  be  found  who  had  it  or  was  responsible  for  its 
value.9 

§  195.     Executor  de  son  tort. 

Any  person,  not  an  executor  or  administrator,  who 
intermeddles  with  the  goods  of  a  decedent,  either  on 
the  pretense  that  he  is  an  executor  or  administrator  or 
otherwise,  is  termed  an  "executor  de  son  tort,"  and 

7  Chapter  X,  supra. 

8  Palmer's    Appeal,   1   Doug.    (Mich.)    422;   Wales  v.   Newbould,   9 
Mich.  83;  Morton  v.  Preston,  18  Mich.  60;  Parks  v.  Norris,  101  Mieh. 
71,  59  N.  W.  428. 

»  Cullen  v.  O'Hara,  4  Mich.  132;  Parks  v.  Norris,  101  Mich.  71,  59 
N.  W.  428. 

(287) 


§  195  PBOBATE    AND    ADMINISTRATION.  [Chap.  18 

is  subject  to  all  the  liabilities,  but  entitled  to  none  of 
the  privileges,  of  a  personal  representative.10  It  in- 
cludes any  person,  whether  acting  for  himself  or  as 
agent  for  another  known  to  him  to  be  without  author- 
ity or  right,  who  takes  possession  of  the  personal  prop- 
erty of  a  decedent  and  converts  it  into  money  without 
administration,  though,  if  an  agent  or  attorney,  he 
accounted  for  it  to  the  person  for  whom  he  acted.11 
He  is  liable  to  the  lawful  representative,  or  a  creditor, 
either  in  an  action  at  law  for  conversion,12  or  in  equity 
for  an  accounting,13  for  all  the  assets  of  the  estate  he 
received,  except  such  as  were  used  in  payment  of 
funeral  expenses,14  of  such  demands  as  he  affirmatively 
shows  were  just  claims  against  the  estate,15  and  such 
payments  for  the  use  and  benefit  of  distributees  as 
would  have  been  made  in  due  course  of  administra- 
tion.16 The  liability  of  an  executor  de  son  tort  sur- 
vives against  his  estate.17 

The  common-law  doctrine  of  the  liability  of  an 
executor  de  son  tort  has  been  changed  by  statute  in 
Oregon,  which  provides  that  no  person  is  liable  to  an 
action  as  executor  of  his  own  wrong  for  having  taken, 
received  or  interfered  with  the  property  of  a  deceased 
person;  but  is  responsible  to  the  executors  or  admin- 
istrators of  such  deceased  person,  for  the  value  of  all 
property  taken  or  received,  and  for  all  injury  caused 

10  Jahns  v.  Nolting,  29  Cal.  507. 

11  Stevenson  v.  Valentine,  27  Neb.  338,  43  N.  W.  107. 

12  Stevenson  v.  Valentine,  27  Neb.  338,  43  N.  W.  107. 

13  Simmons   v.    Simmons'    Admr.,   33    Gratt.    (Va.)    451;    Cheney   T. 
Gleason,  125  Mass.  166;  Craig  v.  Jennings,  31  Ohio  St.  84. 

14  Lenderink  v.  Sawyer,  92  Neb.  587,  138  N.  W.  744. 

15  Crispin  v.  Winkleman,  57  Iowa,  523,  10  N.  W.  919-. 
18  Brown  v.  Walter,  58  Ala.  310. 

17  Stevenson  v.  Valentine,  27  Neb.  338,  43  N.  W.  107. 

(288) 


Chap.  18]  COLLECTION    OF    ASSETS.  §  196 

by  his  interference  with  the  estate.18  For  conversion 
of  such  assets  he  can  be  held  liable  for  double  dam- 
ages.19 

Under  the  above  statutes  no  action  will  lie  for  the 
recovery  of  such  assets  except  at  the  suit  of  the  law- 
fully appointed  executor  or  administrator.  A  cred- 
itor cannot,  as  at  common  law,  maintain  the  action,  but 
must  apply  for  and  receive  letters  of  administration.20 
The  lawful  representative  may  either  bring  an  action 
for  double  damages  for  conversion,  or  for  injury 
caused  by  the  unlawful  interference  with  the  estate, 
and  in  the  action  for  conversion  must  set  up  that  it  is 
brought  under  section  1190.21 

In  the  action  for  conversion  the  executor  de  son  tort, 
who  was  acting  as  administrator  under  a  void  appoint- 
ment, cannot  set  up  as  a  defense  debts  of  the  estate 
which  he  has  paid,22  nor  is  he  entitled  to  credit,  though 
an  heir  of  the  estate,  for  costs  and  fees  paid  in  the 
course  of  his  void  administration,  or  attorney  fees,  or 
any  commission  for  his  services.  The  only  expen- 
ditures for  which  he  can  be  credited  are  such  as  strictly 
and  solely  pertained  to  the  conservation  of  the  estate, 
and  such  charges,  including  attorney  fees  and  for  his 
own  time,  are  a  proper  counterclaim.23 

§  196.    Limitations  on  authority  of  executor  or  ad- 
ministrator over  assets. 

The  surviving  spouse  and  the  children  of  the  de- 
cedent should  be  given  possession  of  such  articles  of 
personal  property  as  pass  to  them  absolutely,  subject 

18  L.  O.  L.,  §  384. 
l»  L.  O.  L.,  §  1190. 

20  Rutherford  v.  Thompson,  14  Or.  239,  12  Pac.  382. 

21  Springer  v.  Jenkins,  47  Or.  598,  84  Pac.  479. 

22  Oh  Chow  v.  Brockaway,  21  Or.  448,  12  Pac.  382. 

23  Slate  v.  Henkle,  45  Or.  434,  78  Pac.  325. 

19— Pro.  Ad.  (289) 


§  196  PROBATE   AND   ADMINISTRATION.  [Chap.  18 

later  to  confirmation  by  the  court.24  It  is  also  proper 
for  the  personal  representative  to  permit  an  heir  or 
legatee  to  retain  possession  of  such  personal  property 
as  growing  crops,  livestock,  farm  implements  and  the 
like,  such  party  being  held  responsible  to  the  repre- 
sentative therefor  and  obliged  to  turn  them  over  if 
necessary. 

Though  entitled  to  possession,  he  has  no  right  to 
enter  upon  the  premises  of  another  in  peaceable  pos- 
session of  assets  of  the  estate,  and  remove  the  same 
therefrom  by  force,  especially  where  the  person  in  pos- 
session is  an  heir  or  legatee  or  claims  title  thereto.  He 
should,  in  case  of  a  refusal  to  deliver  property  when 
its  possession  is  necessary,  bring  special  proceedings 
provided  by  law  or  an  action  in  law  or  equity,  as  the 
case  may  demand.25 

In  the  absence  of  creditors,  the  right  of  an  equitable 
owner  of  real  estate,  who  is  in  possession  at  the  death 
of  decedent,  to  retain  such  possession  pending  ad- 
ministration is  superior  to  that  of  an  executor  or 
administrator.26 

A  debt  due  from  a  legatee  or  heir  is  a  part  of  the 
assets  of  the  estate  the  same  as  though  owing  by  a 
third  party,  but  need  not  be  collected  unless  needed 
for  payment  of  the  debts  and  expenses.  It  should  be 
inventoried.  The  discharge  or  bequest  in  a  will  of  any 
claim  against  a  person  named  as  executor  therein,  or 
against  any  other  person,  is  invalid  as  against  the 

24  Section  443,  post. 

25  Waldo  v.  Waldo,  52  Mich.  94,  17  N.  W.  710;  Bailey  v.  Wright,  39 
Mich.  96;  Daniels  v.  Brown,  34  N.  H.  454. 

26  Emery  v.  Darling,  50  Ohio  St.  160,  33  N.  E.  715;  Tilson  v.  Hollo- 
way,  90  Neb.  48,  134  N.  W.  252;  Koslowski  v.  Newman,  74  Neb.  704, 
105  N.  W.  295. 

(290) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  197 

creditors  of  the  deceased.  For  all  purposes  of  admin- 
istration it  is  treated  as  a  specific  legacy  for  that 
amount.27 

§  197.    Proceedings  to  require  disclosure  of  assets. 

If  any  person  is  suspected  to  have  concealed,  em- 
bezzled, carried  away  or  disposed  of  any  money,  goods 
or  chattels  of  the  deceased,  or  of  having  in  his  pos- 
session or  knowledge  any  deeds,  conveyances,  books, 
contracts,  or  other  writings  which  contain  evidence, 
or  tend  to  disclose  the  right,  title,  interest  or  claim  of 
the  deceased  to  any  real  or  personal  estate,  or  any 
claim  or  demand,  or  any  last  will  and  testament  of  the 
deceased,  he  may  be  cited  by  the  county  judge  to 
appear  and  make  disclosure  of  the  matter  of  such 
complaint.28 

The  proceedings  may  be  commenced  by  the  petition 
of  an  heir,  legatee,  creditor  or  party  interested  in  the 
estate,  or  by  the  personal  representative,  and  may  be 
brought  before  regular  letters  issue. 

Form  No.  86. 

PETITION  FOR  DISCLOSURE  OF  PROPERTY  OF  A  DECEDENT. 
[Title  of  Cause  and  Court.] 
Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  day  of  ,  19 — ,  letters  of  administration   on  the 

estate  of  said  A.  B.,  deceased,  were  issued  to  him  out  of  and  under 
the  seal  of  said  court,  and  that  he  now  is,  and  ever  since  said  date 
has  been,  the  administrator  of  said  estate;  [that  he  is  an  heir,  legatee, 
or  devisee  of  said  estate,  or  that  said  estate  is  indebted  to  him  in 
the  sum  of  dollars  for  ,  and  that  on  the  day  of 

27  L.  0.  L.,  §  1183. 

28  Rev.  Stats.,   c.   17,  §  103,   [1367];   Perrin  v.  Calhoun  Co.  Cir.  Ct., 
49  Mich.  342,  13  N.  W.  767;  L.  O.  L.,  §  1186. 

(291) 


§  197  PROBATE    AND   ADMINISTRATION.  [Chap.  18 


— : — ,  19 — ,  letters  of  administration  on  the  estate  of  A.  B.,  deceased, 

were  issued  to  E.  F.  out  of  and  under  the  seal  of  said  court,  and 
that  said  E.  F.  is  now,  and  ever  since  said  date  last  aforesaid  has 
been,  the  administrator  of  said  estate] ;  that  at  the  time  of  the  death 
of  said  A.  B.,  he,  said  A.  B.,  was  possessed,  as  your  petitioner  verily 
be'ieves,  of  the  following  personal  property:  [Describe  the  property 
which  the  party  is  supposed  to  have  in  his  possession,  as  nearly  as 
possible];  that  soon  after  the  death  of  said  A.  B.,  one  G.  H.,  of 
said  county,  obtained  possession  of  said  above-described  goods,  chat- 
tels, and  effects,  and  has  concealed  or  disposed  of  them,  and  refuses 
to  deliver  them  to  the  administrator  of  said  estate;  that,  said  G.  H. 
has  in  his  control  and  within  his  knowledge  certain  writings  and 
books  of  account,  the  exact  nature  of  which  is  unknown  to  your  peti- 
tioner, the  property  of  said  estate,  which  tend  to  disclose  the  right, 
title,  and  interest  of  said  estate  in  certain  real  and  personal  property, 
and  that  said  G.  H.  has  concealed  or  disposed  of  the  same,  and  refuses 
to  deliver  them  to  said  administrator. 

Your  petitioner  therefore  prays  that  a  citation  may  issue  to  the 
said  G.  H.  commanding  him  to  appear  before  the  court  at  a  time  and 
place  to  be  therein  specified,  and  a  true  disclosure  make  under  oath 
of  all  the  moneys,  chattels,  goods,  credits,  effects,  books  of  account, 
bonds,  contracts,  and  papers  of  every  description  of  the  said  A.  B., 
deceasrd,  which  are  within  his  knowledge  or  control,  or  which  at  any 
time  since  the  death  of  the  said  A.  B.  have  been  within  his  knowledge 
or  possession,  and  for  such  other  and  further  relief  as  may  be  just 
and  equitable. 

Dated  this day  of ,  19 — . 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  87. 
CITATION. 
[Title  of  Cause  and  Court.] 

State  of  Nebraska, 

County, — ss. 

To  G.  H.: 

You  are  hereby  commanded  to  appear  before  the  county  court  at 

the   county   court   room   in  said   county   on   the  day   of   -        — , 

19 — ,  at  9  o'clock  A.  M.  of  said  day,  and  true  answers  make  under  oath 
to  all  interrogatories  that  may  be  put  to  you  concerning  the  moneys, 
chattels,  goods,  credits  and  effects,  books  of  account,  deeds,  bonds, 

(292) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  198 

contracts,  and  papers  of  every  description  belonging  to  the  estate  of 
A.  B.,  deceased,  which  are  within  your  knowledge,  possession,  or  con- 
trol, or  which  may  have  been  within  your  knowledge,  possession,  or 
control  at  any  time  since  the  death  Of  said  A.  B. 

In  witness  whereof  I  have  hereunto  caused  the  seal  of  said  court 
to  be  affixed  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

§  198.    Examination — Nature  of  proceedings. 

The  party  so  cited  is  required  to  appear  and  submit 
to  an  examination  touching  the  matter  set  out  in  the 
petition.  The  answers  must  be  reduced  to  writing, 
signed  by  the  party  examined  and  filed  in  court. 
Should  the  party  cited  refuse  to  appear  and  answer 
the  interrogatories,  he  may  be  committed  to  jail,  there 
to  remain  until  he  complies  with  the  order.29 

Under  the  Oregon  practice,  the  proceedings  may  be 
had  either  before  the  court  or  judge  in  which  the 
administration  is  pending,  or  in  the  county  where  the 
person  resides  or  may  be  found.  In  the  latter  case  a 
certified  copy  of  the  written  interrogatories,  if  any, 
and  the  examination  or  other  proceeding  thereon  or 
connected  therewith,  shall  be  filed  with  the  clerk  of 
the  county  court  where  administration  is  granted.30 

The  proceeding  is  special  and  statutory.  The  power 
of  the  court  is  limited  to  compelling  a  discovery.  It 
is  without  jurisdiction  to  determine  the  ownership  or 
right  to  the  possession  of  the  property,  and  can  make 
no  order  or  decree  based  on  the  disclosure.31 

29  Rev.  Stats.,  e.  17,  §  104,  [1369]. 

so  L.  O.  L.,  §§  1187,  1188. 

31  Gardner  v.  Gilihan,  20  Or.  601,  '27  Pac.  320;  Dray  v.  Bloch,  29 
Or.  353,  45  Pac.  772;  Harrington  v.  Jones,  53  Or.  239,  99  Pac.  935; 
Hillman  v.  Young,  64  Or.  79,  127  Pac.  798;  Snddington  v.  Hewitt,  70 
Wis.  240,  35  N.  W.  552;  Ives'  Appeal,  28  Conn.  416. 

(293) 


§  199  PROBATE    AND   ADMINISTRATION.  [Chap    18 

Form  No.  88. 
OATH  OF  PERSON  CITED  TO  DISCLOSE. 

You  do  solemnly  swear  that  you  will  true  answers  make  to  all  inter- 
rogatories that  may  be  put  to  you  touching  the  moneys,  chattels, 
goods,  credits,  effects,  books  of  account,  deeds,  bonds,  contracts,  and 
papers  of  every  description  belonging  to  the  estate  of  A.  B.,  late  of 
•  county,  Nebraska,  deceased,  within  your  knowledge,  possession, 

or  control  at  any  time  since  the  death  of  said  A.  B.     So  help  you  God. 

Form  No.  89. 

CAPTION  FOR  INTERROGATORIES. 
[Title  of  Cause  and  Court.] 

Testimony  of  G.  H.,  taken  pursuant  to  citation  hereto  attached: 

Now,  on  this  day  of  ,  19 — ,  came  G.  H.,  and,  being 

by  the  judge  of  said  court  first  duly  sworn  to  true  answers  make  to 
all  interrogatories  which  may  be  put  to  him  touching  the  moneys, 
chattels,  goods,  credits,  effects,  books  of  account,  deeds,  bonds,  con- 
tracts, and  papers  of  every  description  belonging  to  the  estate  of  said 
A.  B.,  deceased,  which  are  within  his  knowledge,  possession,  or  con- 
trol, or  which  may  have  been  within  his  knowledge,  possession,  or 
control  at  any  time  since  the  death  of  said  A.  B.,  testified  as  follows: 

Ques. . 

Ans. . 

[The  forms  for  order  to  show  cause,  warrant  and  commitment  are 
substantially  as  in  contempt  proceedings  for  failure  to  produce  will  in 
court.  See  Forms  Nos.  20,  21  and  22.] 

§  199.    Possession  of  real  estate. 

At  common  law  the  executor  or  administrator  had 
-cothing  to  do  with  the  real  estate;  it  passed  directly 
rto  the  heir  or  devisee,  subject,  however,  to  debts.  By 
,  statute  he  is  given  the  right  to  the  possession  of  all 

the  real  estate,  except  the  homestead,  with  full  power 
vio  collect  the  rents,  issues  and  profits  therefrom  until 
;the  estate  has  been  settled  and  the  property  ordered 

delivered  to  the  heirs  or  devisees.32    There  are  two 

32  Rev.  Stats.,  c.  17,  §  102,  [1366];  L.  O.  L.,  §  1185. 
(294) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  199 

recognized  exceptions  to  the  statutory  rule.  The  per- 
sonal representative  has  nothing  to  do  with  lands  held 
by  the  decedent  under  the  federal  land  laws  where 
final  proof  has  not  been  made  or  patent  issued.  In 
that  case  the  heirs  take  by  appointment  and  not 
by  inheritance.33  When  the  executor  is  a  residuary 
legatee  and  has  given  bond  as  such,  the  devisee  is  en- 
titled to  the  immediate  possession  of  the  land  devised 
to  him,  and  the  executor  is  estopped  from  contending 
that  its  possession  is  necessary  for  paying  or  securing 
creditors.34 

The  right  to  possession  attaches  to  all  lands  to  which 
the  decedent  had  a  right  to  possession  at  the  time  of 
his  death,  whether  such  right  was  based  on  a  legal  or 
equitable  title,35  and  should  be  exercised  at  any  time 
when  it  appears  that  the  income  or  the  land  itself 
may  be  needed  for  the  payment  of  the  debts.36  His 
letters  give  him  prima  facie  power  to  take  possession, 
excepting  of  course  where  the  land  is  held  under  a 
valid  lease  from  the  decedent,37  without  an  affirmative 
showing  that  it  is  necessary  for  the  proper  adminis- 
tration of  the  estate,38  and  he  can  maintain  an  action 
of  ejectment  for  that  purpose39  even  against  an  heir 

33  Walker  v.  Ehresman,  79  Neb.  775,  113  N.  W.  218. 
84  Caulton  v.  Pope,  83  Neb.  723,  120  N.  W.  101. 

35  Zeuske  r.  Zeuske,  62  Or.  51,  124  Pac.  205. 

36  Tunnicliff  v.  Fox,  68  Neb.  811,  94  N.  W.   1932;    Humphreys  r. 
Taylor,  5  Or.  261. 

87  See  L.  O.  L.,  §  1185. 

M  Kern  v.  Cooper,  91  Minn.  121,  97  N.  W.  648. 

3»  Tilson  v.  Holoway,  90  Neb.  481,  134  N.  W.  232;  Dundas  v.  Car- 
son, 27  Neb.  634,  43  N.  W.  339;  Kline  v.  Moulton,  11  Mich.  370; 
McBaes  v.  McDonald,  57  Ala.  423. 

(295) 


§  200  PROBATE   AND   ADMINISTRATION.  [Chap.  18 

or  devisee.40  The  statutes  affect  only  the  right  to  pos- 
session, the  title  to  the  fee  passing  to  the  heirs  or 
devisees  in  the  same  manner  as  at  common  law.41 

Under  the  Oregon  practice,  where  the  administrator 
has  taken  possession  of  land  as  a  part  of  the  estate  of 
his  intestate,  he  may  maintain  an  action  under  the 
statute  to  determine  adverse  or  conflicting  claims  or 
interests.42 

§  200.    Recovery  of  real  estate  by  heir  or  devisee. 

Unless  the  executor  or  administrator  takes  posses- 
sion of  real  estate,  the  right  of  the  heir  or  devisee 
therein  remains  unimpaired  as  at  common  law.13  If 
it  is  in  possession  of  parties  claiming  adversely,  the 
heir  may,  pending  administration,  bring  ejectment 
against  all  such  persons,  save  and  except  the  adminis- 
trator and  all  persons  claiming  by,  through  or  under 
him.44  A  devisee  also  has  the  same  rights.45 

An  executor  or  administrator  has  been  held  a  proper 
plaintiff  in  an  action  for  trespass  on  real  estate  in  a 
case  where  the  injury  occurred  previous  to  the  death 
of  the  owner.46  If  the  cause  of  action  accrued  pend- 
ing administration,  the  heir  or  devisee  is  the  party  in- 
jured, though  there  may  be  cases  where  the  amount  of 

40  Miller  v.  Hoberg,  22  Minn.  249. 

41  Clark  v.  Bundy,  29  Or.  190,  44  Pac.  282;  De  Bowe  v.  Wallenberg, 
52  Or.  432,  92  Pac.  536,  97  Pac.  717. 

42  Ladd  v.  Mills,  44  Or.  224,  75  Pac.  141. 

43  Shellenberger  v.  Ransom,  41  Neb.  631,  59  N.  W.  935;  Johnson  v. 
Colby,  52  Neb.  327,  72  N.  W.  313;  Jones  v.  Billstein,  28  Wis.  221. 

44  Lewon  v.  Heath,  53  Neb.  707,  74  N.  W.  274;  Jetter  v.  Lyon,  70 
Neb.  429,  97  N.  W.  596;  Streeter  v.  Patton,  7  Mich.  341. 

45  Beer  v.  Plant,  1  Neb.  Unof.  372,  96  N.  W.  348;  Lantry  v.  Wolff, 
49  Neb.  374,  68  N.  W.  494. 

4«  Kernochan  v.  New  York  El.  R.  Co.,  128  N.  Y.  559,  29  N.  E.  65. 

(296) 


Chap.  18]  COLLECTION  OF  ASSETS.  §§201,202 

the  recovery  is  required  to  pay  the  debts  when  the 
personal  representative  could  bring  it. 

§  201.    Survival  of  causes  of  action. 

Causes  of  action  which  survive  the  death  of  the 
owner  are  assets.  They  are  actions  founded  upon  a 
debt,  contract,  covenant  or  agreement  to  perform 
a  legal  duty,47  replevin,48  for  the  enforcement  of  a 
vendor's  lien49  and  for  mesne  profits,  for  injury  to  per- 
sonal or  real  estate  and  for  relief  on  the  ground  of 
deceit  or  fraud.50 

Under  the  Oregon  statutes,  all  causes  of  action, 
whether  arising  on  contract  or  otherwise,  survive  the 
death  of  the  party,  excepting  only  the  one  for  causing 
his  death,  which  is  provided  for  by  special  act,  and  the 
executors  or  administrators  may  maintain  an  action 
at  law  thereon  against  the  party  against  whom  the 
cause  of  action  accrued,  or  after  his  death  against  his 
personal  representatives.51 

§  202.    Revivor  of  actions  on  death  of  plaintiff. 

All  actions  brought  by  a  plaintiff  and  pending  at 
his  death  survive,  and  may  be  revived  by  his  executor 
or  administrator,  except  those  brought  to  obtain  some 
official  or  personal  right  or  position.52  He  may  pro- 
cure an  order  of  substitution  and  prosecute  them  in 

47  Snow  v.  Snow,  49  Me.  159;  Young  v.  Wells,  33  Mo.  106;  Hazle- 
ton  v.  Bogardus,  8  Wash.  102,  35  Pac.  602. 

48  Pitts  v.  Hale,  3  Mass.  321. 

49  Kobinson  v.  Appleton,  124  111.  276,  15  N.  E.  761. 

50  Code  Civ.  Proc.,  §  463. 

51  L.  O.  L.,  §  379. 

62  Code  Civ.  Proc.,  §§  463,  4G4. 

(297), 


§  203  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

his  representative  capacity,53  and  may  prosecute  a 
writ  of  error  without  being  substituted.54 

In  Oregon  no  action  abates  by  the  death  of  the  plain- 
tiff if  it  is  one  which  survives  his  death.  The  court 
may  at  any  time  within  one  year  on  motion  allow  it  to 
be  continued  by  the  executor  or  administrator.55  It  is 
not  necessary  that  the  order  be  made  within  the  year. 
It  is  sufficient  if  the  application  or  motion  is  filed 
within  that  period.56  The  suit  is  suspended  during 
the  time  between  the  death  of  the  party  and  the  entry 
of  the  order,  and  that  time  is  not  included  in  the  time 
limited  for  taking  an  appeal.57  An  action  which  de- 
termines both  property  and  personal  rights  after  a 
decree  and  an  appeal  therefrom  only  abates  as  far  as 
the  part  determining  personal  rights  is  concerned,  and 
may  be  prosecuted  as  far  as  such  property  interests  is 
concerned.58 

§  203.    Action  for  causing  death  of  decedent. 

At  common  law  an  action  would  not  lie  against  a 
party  whose  willful  or  negligent  act  caused  the  death 
of  another.59  By  statute,  when  the  death  of  a  party 
is  caused  by  the  wrongful  act  or  neglect  of  another, 
the  executor  or  administrator  may  maintain  an  action 
against  such  other  party  in  the  event  the  deceased 
could  have  done  so  had  he  lived,  though  the  death  be 

53  Civ.  Code,  465;  Hendrix  v.  Eieman,  6  Neb.  521. 

54  Webster  v.  City  of  Hastings,  56  Neb.  245,  76  N.  W.  565;  Ritchie 
v.  Seeley,  36  Neb.  164,  102  N.  W.  256;  Long  v.  Thompson,  34  Or.  362, 
55  Pac.  978. 

55  L.  O.  L.,  §§  38,  39. 

56  Barker  v.  Ladd,  3  Saw.  44;  Dick  v.  Kendall,  6  Or.  166. 
*7  McBride  v.  Northern  Pac.  E.  Co.,  19  Or.  65,  23  Pac.  814. 

58  Nickerson  v.  Nickerson,  34  Or,  3,  54  Pac.  277. 

59  Sedgwick,  Damages,  644. 

(298) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  203 

caused  under  such  circumstances  as  amount  to  a 
felony.60 

Such  action  must  be  brought  in  the  names  of  such 
representatives  of  such  deceased  person,  and  the 
amount  recovered  in  every  such  action  shall  be  for  the 
exclusive  benefit  of  the  widow  and  next  of  kin  of  such 
person,  and  shall  be  distributed  to  them  in  the  pro- 
portion provided  by  law  in  relation  to  the  distribution 
of  property  left  by  persons  dying  intestate.  The 
creditors  of  the  estate  have  no  interest  in  it.61 

The  administrator  is  the  only  party  who  can  bring 
the  action,  and  it  is  his  duty,62  when  decedent  left  sur- 
viving him  a  widow  or  next  of  kin  who  have  sustained 
a  serious  pecuniary  loss,  to  do  so.63  The  amount  of 
the  recovery  is  for  the  jury.  It  is  not  limited  by 
statute  and  is  in  theory  a  fair  and  just  compensation 
for  the  pecuniary  injury  resulting  from  such  death  to 
the  widow  and  next  of  kin. 

In  Oregon  the  amount  of  the  recovery  is  limited  to 
seven  thousand  five  hundred  dollars.64  It  is  brought 
by  the  representative  in  the  interest  of  all  interested 
in  the  estate,  creditors  as  well  as  next  of  kin.65 

60  Rev.  Stats.,  c.  17,  §  164,  [1428];  L.  O.  L.,  §  380. 

61  Eev.  Stats.,  c.  17,  §  165,  [1429];  Wilson  v.  Bumstead,  12  Neb.  I, 
10  N.  W.  411. 

62  C.  B.  &  Q.  Ry.  Co.  v.  Healey,  76  Neb.  783,  111  N.  W.  598. 

63  Anderson  v.  Chicago  B.  &  Q.  Ry.  Co.,  35  Neb.  95,  52  N.  W.  840; 
Orgall  v.  Chicago  B.  &  Q.  Ry.  Co.,  46  Neb.  4,  64  N.  W.  450;  Chicago 
B.  &  Q.  Ry.  Co.  v.  Oyster,  58  Neb.  1,  78  N.  W.  359;  City  "of  Friend 
v.  Burleigh,  53  Neb.  674,  74  N.  W.  50. 

«4  L.  O.  L.,  §  380. 

65  Carlson  v.  Oregon  Short  Line  R.  Co.,  21  Or.  459,  28  Pac.  497; 
Olston  v.  Oregon  Water  Power  Co.,  52  Or.  346,  96  Pac.  1095,  97  Pac. 
538;  Perham  v.  Portland  Electric  Co.,  33  Or.  458,  53  Pac.  14. 

(299) 


§  204  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

Such  claim  for  damages  constitutes  of  itself  a  suffi- 
cient asset  to  give  the  court  jurisdiction  to  appoint  an 
administrator,66  and  when  the  acts  which  caused  the 
death  of  the  deceased  occurred  in  one  state  the  statutes 
of  which  give  a  right  of  action  to  the  representatives, 
representatives  appointed  and  acting  in  another  state 
may  bring  the  action  there.67 

§  204.    Mortgages. 

The  interest  of  an  estate  in  realty  conveyed  to  the 
deceased  during  his  lifetime  by  mortgage,  together 
with  the  debt  secured  thereby,  are  considered  as  per- 
sonal assets  in  the  hands  of  the  executor  or  adminis- 
trator, and  he  may  foreclose  the  same,  or  have  any 
other  remedy  for  the  collection  of  such  debt  which  the 
deceased  would  have  had  if  living,  or  may  continue 
any  proceedings  which  may  have  been  commenced  by 
the  deceased  for  such  purpose.68  A  foreign  executor 
has  the  same  rights.  In  case  of  a  redemption  of  the 
mortgage,  or  the  sale  of  the  mortgaged  premises  by 
virtue  of  a  power  of  sale  therein  contained  or  other- 
wise, the  personal  representative  has  power  to  re- 
ceive the  money  and  give  all  necessary  releases  and 
receipts.69 

In  order  to  protect  the  interests  of  the  estate  he  may 
bid  in  the  mortgaged  property  on  the  sale,70  or  any 

66  Missouri  Pac.  R.  R.  Co.  v.  Lewis,  24  Neb.  848,  40  N.  W.  401. 
§  146,  supra. 

67  Missouri  Pac.  E.  Co.  v.  Lewis,  24  Neb.  848,  40  N.  W.  401;  Dennick 
v.  Railroad  Co.,  103  U.  S.  11;  Leonard  v.  Steam  Nav.  Co.,  84  N.  Y. 
48;  Morris  v.  Chicago  R.  I.  &  P.  Co.,  65  Iowa,  727,  23  N.  W.  143. 

«8  Rev.  Stats.,  c.  17,  §  107,  [1371];  Kyger  v.  Riley,  2  Neb.  26. 

69  Rev.  Stats.,  c.  17,  §  107,  [1371]. 

70  Rev.  Stats.,  c.  17,  §  108,  [1372]. 

(300) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  205 

real  estate  at  an  execution  sale  on  a  judgment  in  favor 
of  the  estate.71  He  may  take  the  deed  in  his  own 
name.72  He  is  seised  of  all  lands  so  bid  in  by  him  for 
the  same  persons,  whether  creditors  or  next  of  kin  or 
others,  who  would  have  been  entitled  to  the  money  had 
the  land  been  bid  in  by  other  persons.  It  is  held  sub- 
ject to  the  same  rights  and  liabilities  as  personal 
assets.73 

§  205.     Suits,  how  brought. 

An  action  by  an  executor  or  administrator  on  behalf 
of  the  estate  should  be  brought  in  his  representative 
capacity.  A  distinction  is  often  made  between  actions 
accruing  before  the  death  of  the  decedent  and  those 
accruing  pending  the  administration.  As  to  the 
former,  the  rule  was  that  they  must  be  brought  by 
the  executor  or  administrator  in  his  representative 
capacity;  the  latter  could  be  brought  by  him  in  his 
own  name  or  as  a  personal  representative.74 

As  the  personal  representative  of  a  decedent  is 
obliged  to  render  an  account  of  all  assets  collected  by 
him  for  the  estate,  and  as  all  actions  in  this  state  must 
be  brought  by  the  real  party  in  interest,  he  should 
bring  suit  in  his  representative  capacity.75  Actions 
for  the  recovery  of  specific  articles  of  property  may 
be  either  in  replevin,  or  trover  for  their  conversion.76 

71  Wilson  v.  Miller,  30  Md.  82. 

72  Fifield  v.  Sperry,  20  N.  H.  333. 

73  Eev.  Stats.,  c.  17,  §  109,  [1373];  Williams  v.  Towl,  65  Mich.  204, 
31  N.  W.  835. 

74  Buckland  v.   Gallup,  40  Hun    (N.  Y.),  61;   Knox  v.  Bigelow,  15 
Wis.  415;  Laycock  v.  Oleson,  60  111.  30. 

75  Civ.  Code,  §  23. 

7«  Ham  v.  Henderson,  50  Cal.  367;  Manwell  v.  Briggs,  17  Vt.  176; 
Kent  v.  Bothwell,  152  Mass.  341,  25  N.  E.  721,  9  L.  B.  A.  258. 

(301) 


§  206  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

The  personal  representative  should  set  up  in  his  peti- 
tion the  time  and  place  of  the  death  of  the  decedent, 
the  issue  of  letters  of  administration,  either  special  or 
general,  as  the  case  may  be,  or  the  probate  of  the  will 
and  the  issue  of  letters  testamentary,  and  that  the 
plaintiff  now  is  the  duly  qualified  executor  or  adminis- 
trator of  said  estate.77 

In  Oregon  he  may  sue  either  in  his  representative 
or  individual  capacity,  only  on  such  actions  as  occurred 
after  the  death  of  the  decedent.78 

§  206.    Degree  of  diligence  required  of  an  executor  or 
administrator  in  reducing  assets  to  possession. 

In  performing  the  duty  of  collecting  the  assets  of 
the  estate  of  a  decedent,  the  personal  representative 
should  be  governed  by  the  same  degree  of  prudence 
that  men  usually  exert  in  the  management  of  their  own 
business  enterprises.  As  no  two  cases  are  precisely 
alike,  it  is  impossible  to  lay  down  any  rule  applicable 
to  all  of  them.  His  duty  in  this  regard  depends  in 
a  great  measure  upon  the  condition  of  the  estate,  and 
the  means  and  facilities  within  his  control.  Small  as- 
sets should  not  be  jeopardized  in  an  aimless  search 
after  personalty,  or  in  doubtful  litigation  for  any  prop- 
erty, either  real  or  personal,  which  is  held  adversely, 
and  it  is  proper  for  the  persons  seeking  to  have  such 
property  recovered  to  indemnify  the  personal  repre- 

77  Central  Branch  U.  P.  R.  Co.  v.  Andrews,  37  Kan.  162,  14  Pac. 
509;  Judab  v.  Fredericks,  57  Cal.  389;  Ealphs  v.  Hensler,  97  Cal.  296, 
32  Pac.  243. 

78  Barrell  v.  Kern,  44  Or.  502,  56  Pac.  809;  Sears  v.  Daly,  43  Or. 
346,  73  Pac.  5. 

(302) 


Chap.  18]  COLLECTION  OP  ASSETS.  §  207 

sentative  against  loss  in  such  cases.79  The  duty  also 
depends  upon  the  solvency  or  insolvency  of  the  debtor 
and  the  character  of  the  claim.  A  personal  repre- 
sentative would  not  be  justified  in  using  the  assets  of 
the  estate  in  pursuing  claims  against  debtors  of  doubt- 
ful solvency,  and  he  would  not  be  chargeable  with  cul- 
pable negligence  should  he  not  collect  them,  or  even 
make  much  of  an  effort  to  do  so.80  At  the  same  time, 
he  is  bound  to  try  to  collect  a  debt  from  a  solvent 
debtor,  and,  if  such  debt  is  lost  by  his  neglect,  he  is 
liable.81 

§  207.    Special  proceedings  to  recover  personalty. 

No  person,  whether  he  be  legatee,  next  of  kin,  heir, 
or  creditor,  is,  as  against  a  personal  representative, 
entitled  to  the  possession  of  the  personalty  pending 
administration;  and  where  a  residuary  legatee,  sole 
heir,  or  other  person  is  permitted  by  the  executor  or 
administrator  to  retain  in  his  possession  and  use  the 
property  of  an  estate  pending  administration,  he  will 
be  considered  as  holding  it  as  trustee  for  the  repre- 
sentative, and  required  to  deliver  it  up  to  him  at  any 
time  when  called  upon,82  and  he  cannot  protect  him- 
self by  transferring  it  to  any  other  person.83 

7»  Andrews  v.  Tucker,  7  Pick.  (Mass.)  250;  Sanborn  v.  Goodhue, 
28  N.  H.  48. 

80  Cooke  v.  Cooke,  29  Md.  538;  Patterson  v.  Wadsworth,  89  N.  C. 
407;  Anderson  v.  Piercy,  20  W.  Va.  282. 

81  Schulz  v.  Pulver,  3  Paige  (N.  Y.),  182;  Holcomb  v.  Holcomb's 
Exrs.,  11  N.  J.  Eq.  281. 

82  Bev.    Stats.,    c.    17,  §  105,    [1369];    L.    O.    L.,  §  1189;    Carlisle    v. 
Burley,  3  Me.  250;  Eisenbise  v.  Eisenbise,  4  Watts  (Pa.),  134;  Albright 
v.  Cobb,  30  Mich.  358. 

83  Cullen  v.  O'Hara,  4  Mich.   132;  Parks  v.  Norris,  101  Mich.   71, 
59  N.  W.  428. 

(303) 


§  207  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

On  filing  of  a  complaint  under  oath  of  a  personal 
representative,  the  county  court  may  cite  any  person 
who  may  have  been  permitted  by  the  executor  or  ad- 
ministrator to  retain  any  of  the  personalty  of  the  estate 
in  his  possession  to  appear  before  the  court  and  render 
a  full  account  under  oath  of  all  the  money,  goods,  chat- 
tels, bonds,  accounts,  records,  or  all  other  papers  that 
have  come  into  his  possession  for  such  administrator 
or  executor,  and  his  proceedings  thereon,  and,  if  he 
refuse  to  appear  and  account  for  the  property,  the 
court  may  proceed  against  him  for  contempt.84 

Form  No.  90. 

PETITION  FOR  ACCOUNTING  FOR  PERSONALTY. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  • day  of  ,   19 — ,  letters  testamentary  upon  said 

estate  were  issued  to  him  out  of  and  under  the  seal  of  said  court,  and 
that  he  is  now,  and  ever  since  said  date  has  been,  the  lawful  executor 
of  said  estate;  that  your  petitioner  has  intrusted  to  one  G.  H.,  of  said 
county,  who  is  an  heir  of  said  estate,  certain  personal  property  belong- 
ing to  said  estate,  as  follows:  Twenty  head  of  cattle,  four  head  of 

horses  [describe  property  in  full];  that  on  the  day  of  , 

19 — ,  he  demanded  of  said  G.  H.  the  property  above  described,  and 
possession  thereof  was  refused;  that  possession  of  said  above-described 
property  by  your  petitioner  is  necessary  to  enable  him  to  pay  the 
debts  and  complete  the  settlement  of  said  estate. 

Your  petitioner  therefore  prays  that  a  citation  may  issue  out  of 
this  court  to  the  said  G.  H.,  commanding  him  to  appear  before  this 
court,  at  a  time  and  place  to  be  designated  by  said  court,  and  a  true 
account  make  under  oath  of  all  the  property,  moneys,  goods,  chat- 
tels, bonds,  accounts,  or  other  papers  belonging  to  said  estate  which 
have  come  into  his  possession  in  trust  for  your  petitioner,  and  of 

84  Rev.  Stats.,  c.  17,  §  105,  [1369];  L.  O.  L.,  §  1189.' 

(304) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  208 

h:s  proceedings  thereon,  and  for  such  other  and  further  relief  as  may 
be  just  and  equitable. 

Dated,  etc. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

[For  forms  for  citation  and  caption  to  interrogatories,  see  Nos.  87,  88, 
89.  For  forms  for  contempt  proceedings,  see  Xos.  20,  21,  22.] 

§  208.     Compromising  debts  with  leave  of  the  court. 

If  a  debtor  is  unable  to  pay  his  debt  to  the  estate  in 
full,  the  county  judge  may  permit  the  executor  or  ad- 
ministrator to  compromise  with  him  and  give  him  a 
discharge  upon  receiving  a  fair  and  just  dividend  of 
his  effects.84"  The  words  "unable  to  pay  his  debt  to 
the  estate"  clearly  mean  that  the  debtor  is  insolvent, 
and  thus  only  partially  limit  the  common-law  rule  per- 
mitting compromise  of  debts,85  leaving  the  right  to 
compromise  an  unliquidated  demand  for  damages  as 
at  common  law.86 

Under  the  Oregon  statute,  if  such  compounding  is 
procured  or  induced  by  the  fraudulent  representations 
or  conduct  of  such  debtor,  such  payment  shall  only 
operate  to  discharge  a  like  amount  of  the  debt.87 

Application  should  be  by  petition  duly  verified,  and 
evidence  adduced  showing  the  condition  of  the  debtor's 
affairs. 

84.  Eev.  Stats.,  c.  17,  §  106,  [1370];  L.  O.  L.,  §  1294. 
85  See  §  209,  post. 

«6  Olston  v.  Oregon  W.  &  P.  R.  Co.,  52  Or.  346,  96  Pac.  1095,  97 
Par.  538. 

87  L.  O.  L.,  §  1294. 

20— Pro.  Ad.  (305) 


§  208  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

Form  No.  91. 

PETITION  TO  COMPKOMISE  -DEBT. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on   the  day   of  ,   19 — ,  letters   of   administration   issued 

to  him  out  of  and  under  the  seal  of  said  court,  and  that  he  now 
is  the  duly  appointed  administrator  of  said  estate;  that  one  G.  H.  is 
indebted  to  said  estate  upon  a  past  due  promissory  note  in  the  sum  of 
$1,000,  upon  which  there  is  no  security;  that  said  G.  H.  is  insolvent 
and  has  not  sufficient  property  exempt  from  execution  with  which 
to  satisfy  said  debt  in  full;  that  said  G.  H.  now  offers  to  pay  for 
his  release  and  discharge  from  his  said  obligation  the  sum  of  $750 
cash  in  hand,  which  offer,  in  the  opinion  of  your  petitioner,  is  the  best 
settlement  that  can  be  obtained,  and  should  be  accepted. 

Your  petitioner  therefore  prays  that  an  order  may  be  made  by  the 
court  authorizing  and  empowering  him  to  compromise  said  claim  or 
demand  against  the  said  G.  H.  upon  the  payment  by  said  G.  H.  of  the 
sum  of  $750. 

Dated  this day  of ,  19 — . 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  92. 
ORDER  PERMITTING   COMPROMISE   OF  DEBT. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  this  cause  came  on  for  hearing 

upon  the  petition  of  C.  D.,  administrator  of  said  estate,  for  permis- 
sion to  compromise  a  debt  due  said  estate  from  one  G.  H.,  and  the 
court,  after  hearing  the  evidence,  finds  that  the  said  G.  H.  is  insolvent, 
that  he  is  indebted  to  said  estate  upon  a  promissory  note  in  the  sum 
of  $1,000,  that  said  note  is  unsecured,  that  said  G.  H.  proposes,  with 
the  consent  of  the  court,  to  pay  the  sum  of  $750  in  full  settlement  of 
said  debt,  and  that  said  proposed  compromise  is  a  just  and  fair 
distribution  of  the  effects  of  said  G.  H. 

It  is  therefore  ordered  that  the  said  C.  D.,  administrator,  accept 
said  sum  of  $750  in  full  settlement  of  his  indebtedness  to  said  estate, 
and  upon  the  payment  of  said  sum  he  is  hereby  authorized  and  directed 
to  deliver  to  said  G.  H.  a  receipt  in  full  of  all  demands  of  said  estate 
against  him. 

(Signed)     J.  K., 

County  Judge. 
(306) 


Chap.  18]  COLLECTION  OP  ASSETS.  §  209 

§  209.    Right  to  compromise  debts  without  leave  of 
the  court. 

At  common  law  it  was  a  generally  recognized  doc- 
trine that  an  executor  or  administrator  had  full  au- 
thority to  compromise  or  release  any  claim  or  demand 
belonging  to  the  estate,  without  first  obtaining  the 
permission  of  the  court  to  do  so;88  and  it  is  now  held 
by  a  majority  of  the  courts  that  a  statute  which  pro- 
vides for  compromising  debts  with  leave  of  the  court 
does  not  entirely  do  away  with  the  common-law  right 
of  compromising  debts  due  an  estate,  but  is  a  protec- 
tion to  the  executor  or  administrator.89  The  supreme 
court  of  Kansas  holds  that  the  statute  completely  sup- 
plants the  common-law  right  or  power  to  compromise.90 

In  Oregon,  the  statute  which  forbids  the  sale  of  per- 
sonal property  without  leave  of  the  court,  unless  such 
power  is  given  by  will,  takes  away  the  right  of  an 
executor  or  administrator  to  compromise  any  other 
than  claims  for  unliquidated  damages,  which  are  re- 
garded as  intangible  assets.91 

Should  Hie  personal  representative  of  a  decedent 
compromise  a  claim,  except  for  unliquidated  damages, 
against  the  estate  without  leave  of  the  court  first  had 
and  obtained,  he  is  responsible  to  the  estate  for  any 
error  of  judgment  or  negligent  act  in  regard  to  the 

88  Weyer  v.   Second   Nat.   Bank,   57  Ind.   198;   Boyd's   Sureties  v. 
Oglesby,  23  Gratt.  (Va.)  684;  Moulton  v.  Holmes,  57  Cal.  342;  Bruner's 
Appeal,  57  Pa.  52;  Wyman'a  Appeal,  13  N.  H.  18. 

89  Moulton  v.  Holmes,  57  Cal.  342;  Wyman's  Appeal,  13  N.  H.  18; 
Chadbourn  v.   Chadbourn,  9   Allen    (Mass.),   173;   Geigers   v.  Kaigler, 
9  S.  C.  426. 

80  Aetna  Life  Ins.  Co.  v.  Swayze,  30  Kan.  118,  1  Pac.  36. 

»i  Olston  v.  W.  P.  &  B.  Co.,  52  Or.  347,  96  Pac.  1095,  97  Pac.  538. 

(307) 


§  210  PROBATE   AND   ADMINISTRATION.  [Chap.  18 

same,92  and  the  burden  of  proof  is  upon  him  to  show 
that  it  was  for  the  benefit  of  the  estate.  Such  an 
agreement  to  compromise  a  claim  belonging  to  an  es- 
tate is  valid  and  binding  both  upon  the  debtor  and 
personal  representative,  in  the  absence  of  fraud  or 
collusion,  and  is  a  sufficient  consideration  for  a  con- 
tract.93 A  compromise  which  has  been  obtained  by 
fraud  or  collusion  between  the  personal  representative 
and  the  creditor  may  be  set  aside  by  a  bill  in  equity.94 
If  permission  to  compromise  has  not  been  obtained 
from  the  county  court,  it  must  appear  that  the  com- 
promise was  fair,  beneficial  to  the  estate,  and  free  from 
fraud,  and  that,  in  making  it,  the  personal  representa- 
tive acted  with  due  diligence,  in  good  faith,  and  with 
the  same  degree  of  prudence,  care  and  skill  that  a  pru- 
dent man,  with  the  light  then  obtainable  in  regard  to 
the  entire  situation  of  the  debtor's  affairs,  would  have 
exercised.95  In  California,  the  courts  draw  a  distinc- 
tion between  a  judgment  and  other  claims.  It  is  there 
held  that  a  personal  representative  cannot,  of  his  own 
authority,  release  the  former  for  a  less  amount  than 
its  face,  and  such  release  so  made  was  treated  as  void.96 

§  210.    Right  to  submit  claim  to  arbitration. 

An  executor  or  administrator  has  the  right  to  sub- 
mit a  claim  or  demand  which  the  estate  has  against 

92  Chouteau  v.  Suydam,  21  N.  Y.  184;  Davenport  v.  First  Congrega- 
tional Soc.,  33  Wis.  387. 

93  Waring  v.  Lewis,  53  Ala.  631;  Long  v.  Shackleford,  25  Miss.  566; 
Latta  v.  Miller,  109  Ind.  302;  Cogswell  v.  Concord  &  M.  E.  B.,  68  N.  H. 
192,  44  Atl.  293. 

»4  Henry  County  v.  Taylor,  36  Iowa,  259. 

»5  Jacobs  v.  Jacobs,  99  Mo.  427,  12  S.  W.  457;  Bailey  v.  Dil worth, 

10  Siredes  &  M.  (Miss.)  404;  Underwood  v.  Sample,  70  Ind  448. 
»«  Siddall  v.  Clark,  89  Cal.  321. 

(308) 


Chap.  18]  COLLECTION  OF  ASSETS.  §§211,212 

another  to  arbitration.  This  right  is  based  upon  the 
fact  that  he  has  power  to  prosecute  and  defend  suits.97 
The  award  is  binding  against  the  personal  repre- 
sentative.98 

Arbitration  differs  from  compromising  actions  on 
behalf  of  the  estate,  for  it  is  in  the  nature  of  a  suit, 
and  the  award  of  the  arbitrators  has,  when  recorded, 
the  effect  of  a  judgment. 

§  211.  Right  to  adjust  or  compromise  real  estate  con- 
tracts. 

The  limited  power  given  an  executor,  except  by  the 
express  terms  of  the  will,  or  of  an  administrator,  over 
real  estate,  does  not,  as  a  general  rule,  authorize  him 
to  waive  or  release  a  contract  for  the  same.99 

In  the  case  of  executory  contracts,  however,  where 
the  title  has  not  passed,  he  has  the  same  rights  and 
is  entitled  to  the  same  remedies  as  his  decedent.  He 
may  rescind  or  declare  a  forfeiture.100  He  has  no  in- 
herent power  to  obtain  a  release  of  a  widow's  marital 
interest  in  lands  by  paying  a  cash  amount.101 

§  212.    Actions  to  recover  assets  transferred  in  fraud 

of  creditors. 

A  personal  representative  is  not  bound  to  recover 
personal  property  transferred  by  the  decedent  with 

97  Kendall  v.  Bates,  35  Me.  357;  Eaton  v.  Cole,  10  Me.  137;  Weston 
v.  Stuart,  11  Me.  326;  Bean  v.  Farnam,  6  Pick.  (Mass.)  269. 

!"<  Wheatley  v.  Martin's  Admr.,  6  Leigh  (Va.),  62;  Bean  T.  Farnam, 
6  Pick.  (Mass.)  269. 

99  Hunt  v.  Thorn,  2  Mich.  213. 

100  Gillilan   v.  Oak' s,   1   Neb.  Unof.  55,  95  N.  W.  511;   Howard  v. 
Babco  -k,  7  Ohio.  pt.  2.  p.  73.     See  §  252  et  seq.,  post. 

101  Needham  v.  Bclote,  39  Mich.  487. 

(309) 


§  212  PROBATE   AND   ADMINISTRATION.  [Chap.  18 

intent  to  defraud  his  creditors  unless  the  assets  of  the 
estate  are  insufficient  to  pay  the  debts  and  expenses 
of  administration.  The  law  does  not  concern  itself 
about  what  disposition  a  man  of  sound  mind  may  make 
of  his  property  while  living,  unless  such  disposition 
is  fraudulent  as  to  his  creditors,  or  was  obtained  from 
him  by  fraud.102 

Whenever  there  shall  be  a  deficiency  of  assets  in  the 
hands  of  the  executor  or  administrator,  and  when  the 
deceased  shall,  in  his  lifetime,  have  conveyed  any  real 
estate,  or  any  right,  title  or  interest  therein,  with  in- 
tent to  defraud  his  creditors,  or  to  avoid  any  right, 
debt,  or  duty  of  any  person,  or  shall  have  so  conveyed 
such  estate  that  by  law  the  deeds  or  conveyances  are 
void  as  against  creditors,  the  executor  or  adminis- 
trator may,  and  it  shall  be  his  duty  to,  commence  and 
prosecute  to  final  judgment  any  proper  action  or  suit 
at  law  or  in  equity  for  the  recovery  of  the  same,  and 
may  recover,  for  the  benefit  of  the  creditors,  all  such 
real  estate  so  fraudulently  conveyed,  and  may  also,. 
for  the  benefit  of  the  creditors,  sue  for  and  recover 
all  the  goods,  chattels,  rights  and  credits  which  have 
been  so  fraudulently  conveyed  by  the  deceased  in  his. 
lifetime,  whatever  may  have  been  the  manner  of  such 
fraudulent  conveyance.103 

Under  the  Oregon  practice,  it  is  the  duty  of  the 
executor  or  administrator,  when  it  appears  that  a 
transfer  has  been  made  by  his  decedent  which  he  has 
reasonable  ground  to  believe  to  be  fraudulent,  to  peti- 
tion the  county  court  or  a  judge  thereof  for  leave  to 
commence  and  prosecute  to  final  decree,  the  necessary 

102  Hoffman  v.  Tucker,  58  Neb.  457,  78  N.  W.  941. 

103  Rev.  Stats.,  c.  17,  §  111,  [1375];  L.  O.  L.,  §  1279. 

(310) 


Chap.  18]  COLLECTION  OP  ASSETS.  §  212 

or  proper  suits  or  actions  to  have  the  conveyance, 
transfer,  judgment  or  decree  or  sale  declared  void  and 
the  property  affected  discharged  from  the  effect 
thereof.104 

If  he  neglect  or  refuse  to  make  the  application,  or 
if  he  is  the  party  to  whom  it  is  alleged  the  fraudulent 
transfer  was  made,  or  appears  to  be  in  any  way  inter- 
ested in  upholding  the  conveyance,  judgment  or  de- 
cree, he  may  be  removed  from  his  office,  and  a  repre- 
sentative appointed  who  will  do  his  duty.105  He 
cannot  bring  the  action  of  his  own  motion  without  an 
order  from  the  court.106 

If  it  appears  to  such  court  or  judge  that  the  assets 
are  insufficient  for  the  payment  of  the  debts,  funeral 
charges  and  expenses  of  administration,  and  that  it  is 
probable  that  the  conveyance,  transfer  or  judgment 
was  made,  suffered,  consented  to  or  procured  with  in- 
tent to  defraud,  it  shall  make  the  order  directing  the 
prosecution  of  the  suit  as  to  any  and  all  matters 
alleged  in  the  petition.107 

Form  No.  92a — Oregon. 

PETITION    FOR    ORDER    TO    BRING    ACTION   TO    SET    ASIDE 
FRAUDULENT  CONVEYANCE  BY  DECEDENT. 

[Title  of  Cause  and  Court.] 

To  the  County  Judge  of  said  County  of and  State  of  Oregon; 

Comes  now  C.  D.,  administrator  of  the  estate  of  said  A.  B.,  ancl 

represents  unto  the  court  that  heretofore,  to  wit,  ,  19 — ,  said 

A.  B.  was  the  owner  of  the  following  described  real  estate  situated  in 

the  county  of  —       —  and  state  of  Oregon, ,  which  said  property 

was  of  the  value  of  $ ,  and  of  a  stock  of  merchandise  situated 

104  L.  O.  L.,  §  1279. 

105  Marks  v.  Coats,  37  Or.  611,  62  Pac.  488. 

106  King  v.  Boyd,  4  Or.  332;  Humphreys  v.  Taylor,  5  Or.  362;  Butt* 
v.  Purdy,  63  Or.  169,  125  Pac.  313,  127  Pac.  25;  Hillman  v.  Young, 
64  Or.  79,  127  Pac.  793. 

107  L.  O.  L.,  §  1280. 

(311) 


§  212  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

in  the  building  on  said  lots,  and  consisting  of  clothing,  men's  fur- 
nishing goods,  boots  and  shoes,  of  the  value  of  $ ;  and  on  said 

day  and  date  last  aforesaid  was  indebted  to  the  X.  Y.  Co.,  a  corpora- 
tion, for  merchardisa  sold  and  delivered  to  him,  the  said  A.  B.,  on 

,  19 — ,  in  the  sum  of  $ ,  which  said  amount  was  then  due 

and  payable;  to  the  L.  M.  Co.,  for  merchandise  sold  and  delivered  to 

him,  said  A.  B.,  on  ,  19 — ,  in  the  sum  of  $ ,  which  said 

amount  became  due  and  payable  on  the  day  of  ,  19 — ; 

and  was   also   indebted  to  the   First  National  Bank   of  on   a 

promissory   note   for   the   sum   of   $ ,   which   was   then   due   and 

payable. 

That  on  said  day  of  ,  19 — ,  said  A.  B.  executed  and 

delivered  to  one  C.  B.,  of  ,  a  certain  pretended  deed  to  said 

real  estate  for  the  pretended  consideration  of  $ ,  and  a  certain 

pretended  bill  of  sale  of  said  stock  of  merchandise  for  the  pretended 
consideration  of  $ ;  that  said  deed  and  bill  of  sale  were  exe- 
cuted and  delivered  by  said  A.  B.  to  said  C.  B.  for  the  purpose  of 
hindering,  delaying  and  defrauding  the  creditors  of  him,  the  said  A.  B., 
which  intent  and  purpose  were  then  and  there  well  known  by  said 
C.  B.  to  be  fraudulent  and  made  for  the  purpose  of  hindering  and  de- 
laying the  creditors  of  said  A.  B.  in  the  collection  of  their  just  de- 
mands, and  that  the  said  A.  B.  continued  in  possession  of  said  real 
estate  and  in  charge  of  said  stock  of  merchandise  after  the  execution 
and  delivery  of  said  deed  and  said  bill  of  sale.  That  said  claims 
above  set  forth  have  been  presented  to  said  administrator  for  allow- 
ance and  have  been  allowed  by  him  as  valid  and  subsisting  demands 
against  said  estate,  and  that  the  costs  and  expenses  of  administration 

of  said  estate  will  amount  to  the  sum  of  about  $ ,  and  that  all 

of  said  amounts  are  due  and  unpaid. 

That  the  appraised  value  of  the  estate  of  said  A.  B.  which  has  come 
into  the  possession  of  said  administrator,  as  appears  from  the  inven- 
tory and  appraisement  is  the  sum  of  $ ,  and  that  no  other  property 

has  come  into  the  possession  since  the  filing  of  said  inventory. 

Said  administrator  therefore  prays  that  an  order  be  made  and  en- 
tered directing  him,  said  administrator,  to  commence  and  prosecute  an 
action,  or  actions  against  said  C.  B.  for  the  setting  aside  of  said  deed 
and  till  of  sale  and  the  recovery  of  possession  of  said  property  therein 
attempted  to  be  conveyed. 

(Signed)     C.  D., 
Administrator  of  the  Estate  of  A.  B.,  Deceased. 

[Add  verification.] 

(312) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  212 

Notice  of  the  application  is  not  required  by  the 
statute.  If  the  allegations  are  sufficient,  it  is  the  duty 
of  the  court  or  the  judge  thereof  to  enter  the  order 
prayed  for. 

Form  No.  92b — Oregon. 

ORDER  AUTHORIZING  SUIT  TO  SET  ASIDE  CONVEYANCES. 
[Title  of  Cause  and  Court.] 

On  reading  and  filing  the  petition,  duly  verified,  of  C.  D.,  adminis- 
trator of  said  estate,  praying  for  an  order  of  the  judge  of  said  court, 
directing  him,  said  administrator,  to  bring  an  action  against  one  C.  B. 
to  set  aside  a  certain  deed  to  the  following  described  real  estate, 

,  and  also  to  set  aside  a  bill  of  sale  to  the  following  described 

personal  property,  ,  as  fraudulent  and  void  as  to  the  creditors 

of  him.  the  said  A.  B. ;  and  it  appearing  therefrom  that  said  estate 
of  said  A.  B.  is  insolvent,  that  said  A.  B.  made  said  conveyances  dur- 
ing his  lifetime,  and  that  there  is  reasonable  ground  to  believe  said 
conveyances  to  be  fraudulent  as  to  the  creditors  of  him,  the  said  A.  B., 
it  is  therefore  ordered  that  said  C.  D.,  administrator  of  the  estate 
of  said  A.  B.,  deceased,  be  and  he  hereby  is  authorized  and  directed 
to  commence  and  prosecute  any  necessary  action  or  actions  against 
said  C.  B.  to  recover  possession  of  said  real  estate  and  said  personal 
property  and  set  aside  as  fraudulent  as  to  creditors  said  deed  and  said 
bill  of  sale. 

Dated  this day  of ,  19 — . 

(Signed)     J.  K., 
Judge  of  County  Court. 

Such  right  of  action  is  based  upon  the  theory  that 
the  executor  or  administrator  represents  all  parties 
interested  in  the  estate, — legatees,  heirs  and  credi- 
tors,— holding  the  property  and  all  rights  pertaining 
thereto  for  them;  and  while  acting  as  representative 
of  the  former  as  well  as  the  latter,  he  has  authority  to 
impeach  the  fraudulent  acts  of  his  decedent,  being  in 
no  manner  bound  thereby.108 

108  Clark  v.  Clough,  65  N.  H.  43,  23  Atl.  529. 

(313) 


§  213  PROBATE    AND   ADMINISTRATION.  [Chap.  18 

The  action  being  one  which  cannot  be  brought  unless 
there  are  unpaid  claims  against  the  estate,  and  not 
enough  funds  with  which  to  pay  them,109  it  would  seem 
that  the  proper  time  to  bring  it  is  after  claims  have 
been  allowed  and  the  amount  of  the  indebtedness  and 
deficiency  of  assets  thereby  determined.110  It  has  been 
held,  however,  that,  where  the  administrator  is  satis- 
fied that  there  will  be  a  deficiency,  he  need  not  wait 
until  all  claims  have  been  judicially  determined  before 
bringing  the  action.111 

Suit  must  be  brought  within  four  years  from  the 
date  when  the  cause  of  action  accrued.  The  death  of 
the  fraudulent  grantee  does  not  toll  the  statute  of 
limitations.112 

§  213.    Suit  by  creditor. 

Where  the  executor  or  administrator  is  the  person 
to  whom  it  is  alleged  the  deceased  has  fraudulently 
transferred  his  property  during  his  lifetime,  a  creditor 
is  a  proper  person  to  bring  a  suit  to  set  aside  the  trans- 
fer, and  on  a  proper  showing  an  injunction  will  issue 
to  restrain  the  personal  representative  from  encumber- 
ing or  in  any  manner  disposing  of  his  property.115 

109  Hofmann  v.  Tucker,  58  Neb.  457,  78  N.  W.  941. 

no  Field  v.  Andrada,  106  Cal.  107,  39  Pac.  323;  O'Connor  v.  Boylan, 
19  Mich.  209,  13  N.  W.  519;  Estes  v.  Wilcox,  67  N.  Y.  264;  Fletcher  v. 
Holmes,  40  Me.  364. 

in  Andrew  v.  Hinderman,  71  Wis.  148,  36  N.  W.  624. 

112  Lesieur  v.  Simon,  73  Neb.  645,  103  N.  W.  302. 

US  Becker  v.  Anderson,  6  Neb.  499;  Id.,  11  Neb.  494,  9  N.  W.  640. 
The  petition  in  the  above  case  was  filed  to  set  aside  as  fraudulent  a 
chattel  mortgage,  the  estate  being  insolvent.  The  court  held  that  the 
mortgaged  property  constituted  a  fund  for  the  payment  of  debts,  and 
the  executor  could  not  hold  them  as  mortgagee,  the  mortgage  being 
fraudulent  from  its  inception.  A  sweeping  injunction  was  also  granted. 

(314) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  214 

The  same  rule  would  apply  where  the  assets  had  come 
into  the  possession  of  a  third  party  through  fraud  or 
•collusion  of  the  personal  representative.114 

Independent  of  the  statute,  a  creditor  whose  claim 
has  been  allowed  may  bring  the  action  in  his  own  be- 
half and  on  behalf  of  other  creditors,  such  other  credi- 
tors being  entitled  to  share  proportionately  in  the 
•distribution  of  any  personalty  or  proceeds  of  real 
estate  so  recovered.115 

§  214.    Indemnity  bond. 

The  executor  or  administrator  is  not  bound  to  sue 
for  the  property  conveyed  to  defraud  creditors,  unless 
such  creditors  make  application  therefor  and  either 
pay  or  give  security  for  the  payment  of  such  part  of 
the  costs  and  expenses  of  suit  as  the  county  court  shall 
deem  just  and  equitable.116  He  may  bring  suit  at  the 
request  of  the  creditors  and  without  first  being  indem- 
nified as  the  statute  requires.117 

There  is  no  statutory  provision  requiring  a  written 
request  to  be  served  on  the  executor  or  administrator, 
but,  if  the  creditor  wishes  to  place  himself  in  the  posi- 
tion where  he  can  enforce  his  order,  a  written  notice 
should  be  served  when  the  bond  which  the  court  re- 
quires is  presented  to  him.  The  personal  representa- 
tive may  then  be  compelled,  by  proper  proceedings,  to 
bring  the  suit.118 

H4  McGlave  v.  Fitzgerald,  67  Neb.  417,  93  N.  W.  692. 

"5  Irwin's  Estate,  141  Pa.  278,  21  Atl.  604;  Loomis  v.  Tift,  16  Barb. 
(X.  Y.)  541;  Hills  v.  Sherwood,  48  Cal.  386;  Ohm  v.  Superior  Court, 
So  Cal.  545,  26  Pac.  244. 

no  Rev.  Stats.,  c.  17,  §  112,  [1396]. 

in  Chapoton  v.  Prentis,  144  Mich.  283,  107  N.  W.  879. 

us  Ohm  v.  Superior  Court,  85  Cal.  545,  26  Pac.  244. 

(315) 


§  214  PROBATE   AND    ADMINISTRATION.  [Chap.  18 

form  No.  93. 

PETITION  FOB  ORDER  REQUIRING  EXECUTOR  OR  ADMINIS- 
TRATOR TO  BRING  SUIT  TO  SET  ASIDE  FRAUDULENT 
CONVEYANCES  OF  A  DECEDENT. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  day  of  ,  19 — ,  the  commissioners  duly  appointed 

to  examine  and  allow  claims  against  said  estate  allowed  a  claim 
against  the  said  estate  in  favor  of  your  petitioner  for  the  sum  of 
$1,UOO;  that  the  inventory  and  appraisement  of  said  estate,  as  ap- 
pears by  the  records  and  files  thereof,  show  that  the  assets  of  said 
estate  amount  to  the  sum  of  $500;  that  said  commissioners  have 
allowed  against  said  estate,  from  the  allowance  of  which  no  appeal 
has  been  taken,  claims  aggregating  the  sum  of  $10,000;  that  said  A.  B. 
was,  at  the  time  of  his  death,  seised  of  no  real  estate  in  his  own 
name;  that  your  petitioner  has  good  reason  to  believe,  and  does 
believe,  that  the  said  A.  B.,  during  his  lifetime,  transferred  the  fol- 
lowing described  property  [describe  property  alleged  to  have  been 
transferred  in  fraud  of  creditors]  to  one  L.  M.,  with  the  intent  on  his 
part  to  hinder,  delay,  and  defraud  the  creditors  of  said  A.  B.  and  your 
petitioner,  which  intent  was  then  and  there  well  known  to  said  L.  M. 

Your  petitioner  therefore  prays  that  the  court  may  make  an  order 
requiring  G.  H.,  administrator  of  said  estate,  to  bring  a  suit  against 
L.  M.  for  and  in  behalf  of  the  said  estate,  to  set  aside  said  transfer 
as  fraudulent  and  void  as  to  your  petitioner  and  the  other  creditors 
of  said  estate,  and  that  said  court  may  also  determine  what  part  and 
proportion  of  the  expenses  of  such  suit  your  petitioner  and  other 
creditors  of  said  estate  be  required  to  pay  or  secure. 

Dated  this  day  of  ,  19—. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  94. 

ORDER  REQUIRING  EXECUTOR  OR  ADMINISTRATOR  TO  BRING 
SUIT  TO  SET  ASIDE  FRAUDULENT  TRANSFER. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  application  of  C.  D.  for  an  order  requiring  G.  H., 
administrator  of  said  estate,  to  bring  suit  to  set  aside  transfers  of 
realty  made  by  said  A.  B.  in  his  lifetime,  and  alleged  to  have  been 

(316) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  214 

made  with  intent  to  defraud  the  creditors  of  him,  said  A.  B.;  and  it 
appearing  to  the  court  that  the  assets  of  the  estate,  as  appears  from 
the  inventory  and  appraisement,  are  wholly  insufficient  for  the  pay- 
ment of  the  debts  and  allowances  against  said  estate,  and  it  further 
appearing  to  the  court  that  C.  D.  is  a  lawful  creditor  of  said  estate, 
and  that  there  is  probable  cause  for  believing  that  an  action  could  be 
maintained  to  set  aside  the  transfer  of  the  following  described  real 
estate  [describe  real  estate  alleged  to  have  been  fraudulently  con- 
veyed] as  made  by  said  A.  B.  with  an  intent  to  hinder,  delay,  and 
defraud  petitioner  and  the  other  creditors  of  said  estate,  and  that  said 
fraudulent  intent  was  well  known  to  the  grantee  in  said  conveyances, — 
one  L.  M.: 

It  is  therefore  ordered  that  C.  D.  or  other  creditor  of  said  estate 
pay  or  secure  by  proper  bond  one-half  of  the  expenses  and  costs  of 
prosecuting  a  suit  to  recover  said  real  estate  above  described,  and 
that  said  G.  H.,  administrator  as  aforesaid,  on  receipt  of  said  security, 
be  and  he  hereby  is  authorized  and  directed  to  bring  such  suit  as  the 
circumstances  of  the  case  may  require,  to  recover  for  and  in  behalf 
of  said  estate  possession  of  said  above-described  real  estate. 

(Signed)     J.  K, 

County  Judge. 
Form  No.  95. 

BOND   TO   SECUEE   COSTS   AND   EXPENSES   OF   SUIT   TO   SET 
ASIDE  FRAUDULENT  CONVEYANCE  MADE  BY  DECEDENT. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and 
E.  F.,  as  surety,  are  held  and  firmly  bound  unto  G.  H.,  administrator 
of  the  estate  of  A.  B.,  deceased,  in  the  penal  sum  of  five  hundred  dol- 
lars ($500),  for  which  payment  well  and  truly  to  be  made  we  do  hereby 
bind  ourselves,  our  heirs,  executors,  administrators,  and  assigns  jointly 
and  severally  by  these  presents. 

Whereas,  by  an  order  of  the  county  court  of  county, 

Nebraska,  duly  entered  by  the  county  judge  thereof  on  the  

day  of  ,  19 — ,  G.  H.,  administrator  of  said  estate,  was  author- 
ized to  bring  a  suit  to  set  aside  the  transfer  of  the  following  de- 
scribed realty  [describe  realty  alleged  to  have  been  fraudulently  con- 
veyed], as  made  to  hinder,  delay,  and  defraud  the  creditors  of  said 
estate,  on  condition  that  said  creditors  give  a  bond  with  proper 
security  for  the  payment  of  one-half  of  the  costs  and  expenses  of  said 
suit: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
above-bounden  C.  D.  shall  well  and  truly  pay  or  cause  to  be  paid  to 

(317) 


§  215  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

said  G.  H.,  administrator,  one-half  of  the  costs  and  expenses  of  a  suit 
to  be  commenced  by  said  G.  H.  to  recover  the  land  above  described 
as  having  been  transferred  by  said  A.  B.  with  the  intent  of  him, 
said  A.  B.,  to  hinder,  delay,  and  defraud  the  creditors  of  said  A.  B., 
then  these  presents  shall  be  null  and  void;  otherwise  to  be  and  remain, 
in  full  force  and  effect. 

Dated  this day  of  ,  19 — . 

(Signed)     C.  D. 
E.  F. 

Bond  and  surety  approved  by  me  this  day  of  -      — ,  19 — 

(Signed)     J.  K., 
County  Judge. 

§  215.    Nature  of  the  action. 

Actions  either  by  an  executor  or  administrator  under 
the  statute,  or  by  a  creditor,  to  set  aside  a  fraudulent 
transfer  by  decedent  of  his  property,  are  in  the  nature 
of  creditors'  bills  or  bills  to  reach  assets.  The  allow- 
ance of  the  claims  by  the  court  or  commissioners,  and 
the  deficiency  of  assets,  have  the  same  effect  as  the 
entry  of  a  judgment,  issue  of  execution  thereon  and 
return  thereof  unsatisfied.119 

Property  to  which  a  widow  or  heir  is  absolutely  en- 
titled cannot  be  reached  in  such  action.120  In  cases 
where  the  conveyance  was  given  to  secure  future  sup- 
port and  its  conditions  have  been  performed,  the 
executor,  administrator  or  creditor  can  recover  the 
difference  between  the  value  of  the  support  or  services 
and  the  value  of  the  property.121 

The  transfer  of  property  by  a  decedent  during  his 
lifetime  with  intent  to  defraud  is  voidable  only  in  so 

ii»  Gardner  v.  Gardner,  17  R.  I.  751,  24  Atl.  785;  Steere  v.  Hoagland, 
39  111.  264;  Whitney's  Heirs  v.  Kimball,  4  Ind.  546. 

120  Pease  v.  Shirlock,  63  Vt.  622,  22  Atl.  661. 

121  Crane   v.   Stickles,   15   Vt.   252;    Verplank   v.   Sterry,   12   Johns. 
(N.  Y.)  536;  Kelsey  v.  Kelley,  63  Vt.  41,  22  Atl.  597. 

(318) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  216 

far  as  the  rights  of  creditors  and  the  costs  and  ex- 
penses of  administration  are  concerned.122  The  judg- 
ment should  direct  that  the  transfer  of  personal  prop- 
erty be  set  aside  and  the  property  held  subject  to  the 
general  demands  against  the  estate.123  It  should  sub- 
ject the  real  estate  so  transferred  to  the  claims  allowed, 
and  charges  and  expenses,  or  the  deficiency,  if  there 
is  some  personal  estate  which  can  be  applied  for  that 
purpose,  order  their  payment  within  a  fixed  time,  and 
for  sale  in  default  of  payment.124 

§  216.    Right  of  heir  or  legatee  to  collect  assets. 

As  a  general  rule,  no  one  but  an  executor  has  a 
right  to  bring  a  suit  to  collect  the  assets  of  the  estate 
pending  administration,125  even  though  he  be  the  sole 
heir.126 

There  are  two  exceptions  recognized  by  our  courts. 
Heirs  or  beneficiaries  under  a  will  may  have  a  bill  in 
equity  against  the  executor  or  administrator  and  the 
party  indebted  to  the  estate  to  recover  assets,  provided 
the  debts  and  expenses  of  administration  are  paid  and 
the  personal  representative  refuses  to  bring  suit.127 

An  heir  or  legatee  may  repudiate  a  compromise  of 
a  pending  suit,  entered  into  between  the  administrator 
or  executor  and  others  having  an  interest,  and  the 

12:2  Hillman  v.  Young,  64  Or.  79,  127  Pac.  793. 

123  See  Becker  v.  Anderson,  11  Neb.  494,  8  N.  W.  640. 

124  Chapoton  v.  Prentis,  144  Mich.  283,  103  N.  W.  302. 

125  Finnegan  v.  Finnegan,  125  Ind.  262,  25  N.  E.  341;   Haynes  v. 
Harris,  33  Iowa,  516;  Pritchard  v.  Norwood,  155  Mass.  539,  30  N.  E. 
80;  Varner  v.  Johnson,  112  N.  C.  570,  17  S.  E.  483;  Murphy  v.  Hanra- 
han,  50  Wis.  485,  7  N.  E.  636. 

126  Holowell  v.  Cole,  25  Mich.  345. 

127  Prusa  v.  Everett,  78  Neb.  250,  113  N.  W.  571. 

(319) 


§  217  PROBATE    AND    ADMINISTRATION.  [Chap.  18 

debtor,  without  his  consent.  He  may  be  substituted 
as  sole  plaintiff  and  prosecute  the  action  for  his 
share.128 

If  it  appears  that  no  letters  of  administration  have 
been  granted  and  that  there  are  no  debts,  it  has  been 
held  that  the  heirs  may  sue  to  recover  property  and 
distribute  it  among  themselves.129 

§  217.    Debt  of  executor  or  administrator  to  estate. 

It  is  a  well-established  rule  of  law,  running  back 
even  before  the  Revolution,  that  an  executor  or  admin- 
istrator is  considered  as  having  paid  the  debts  due 
from  him  to  the  estate,  and  as  actually  having  in  his 
possession  that  much  more  cash.130  If  the  personal 
representative  is  insolvent,  the  courts,  in  the  interests 
of  all  concerned,  modify  this  rule  somewhat.  He 
should  still  charge  himself  with  the  amount  of  his 
debt,  but  it  does  not  make  it  actual  money.  The  law 
does  not  require  impossibilities,  and  there  is  no  more 
reason  why  he  should  be  considered  as  having  paid 
what  he  was  utterly  unable  to  pay  than  any  other 
creditor.  He  is  held  liable  to  the  estate  to  the  extent 

128  Tecumseh  Nat.  Bank  v.  McGee,  61  Neb.  709,  85  N.  W.  949.     In 
this  case  the  administrator  and  three  heirs,  without  the  consent  of 
the  fourth,  compromised  a  suit  for  five  thousand  dollars  and  interest 
against  a  solvent  defendant  for  eight  hundred  dollars,   two  hundred 
dollars  to  each  heir.     The  fourth  heir  filed  objections  to  the  settlement 
and  asked  to  be  substituted  as  plaintiff  and  prosecute  the  action  for 
her  one-fourth  interest,  should  the  administrator  refuse  to  do  so.     She 
was  substituted  and  a  judgment  for  her  full  share  sustained. 

129  Cox  v.  Teazel,  49  Neb.  343,  68  N.  W.  483;  Tecumseh  Nat.  Bank 
v.  McGee,  61  Neb.  709,  85  N.  W.  949. 

,  130  Waukford  v.  Waukford,  1  Salk.  306;  Stevens  v.  Gaylord,  11 
Mass.  256;  Wheeler  v.  Emerson,  44  N.  H.  182. 

(320) 


Chap.  18]  COLLECTION  OF  ASSETS.  §  217 

of  his  ability  to  pay  the  same  at  any  time  during 
administration.131  It  has  been  held,  however,  that  a 
judge  of  probate  has  no  authority  to  release  him  from 
any  part  of  the  debts  on  the  mere  ground  that  he  is 
unable  to  perform  it.  He  has  no  authority  to  direct 
the  personal  representative  to  compromise  with  him- 
self, nor  has  he  any  authority  to  negotiate  and  com- 
promise with  the  personal  representative.132  It  would 
seem  that  the  only  way  the  indebtedness  of  an  in- 
solvent executor  or  administrator  to  the  estate  could 
be  adjusted,  and  the  amount  which  he  should  pay 
determined,  is  by  an  equity  proceeding.133 

131  Lyon  v.  Osgood,  58  Vt.  707,  7  Atl.  5;  Howell  v.  Anderson,  66 
Xeb.  975,  92  N.  W.  780;  Howell  v.  Dodge,  140  Mich.  236,  103  N.  W. 
597;  Ewen  v.  Hitchcock  (Iowa),  146  N.  W.  1;  L.  O.  L.,  §  1182;  In  re 
Mason's  Estate,  42  Or.  180,  70  Pae.  507;  United  Brethren  v.  Aken,  45 
Or.  250,  77  Pac.  748. 

132  X1  orris  v.  Towle,  54  N.  H.  290;  Judge  of  Probate  v.  Sulloway, 
68  N.  H.  511,  44  Atl.  720. 

133  Lyon  v.  Osgood,  58  Vt.  707,  7  Atl.  5;  Barker  v.  Irick,  10  N.  J. 
Eq.  269. 

21-J-ro.Ad.  (321) 


CHAPTER  XIX. 

MANAGEMENT  OF  ESTATES. 

§  218.  General  Powers  of  Executor  or  Administrator. 

219.  Actions  Against  the  Estate. 

220.  Management  of  Real  Estate. 

221.  Power  of  Executor  to  Sell  Real  Estate. 

222.  Sales  by  Administrator  With  the  Will  Annexed. 

223.  Sales  of  Personal  Property. 

224.  Executor  or  Administrator  not  to  be  a  Purchaser. 

225.  Caveat  Emptor. 

226.  Right  of  Creditor,  Heir  or  Legatee  to  Follow  Assets. 

227.  Assets  of  Estate  Held  by  Heirs  or  Legatees. 

228.  Contribution  by  Heirs  or  Devisees  for  Payment  of  Debts. 
228a.  Recovery  of  Property  from  Distributees. 

228b.  Liability  of  Heirs  for  Debts. 

229.  Investment  of  Assets. 

230.  Liability  of  Executor  or  Administrator  on  His  Own  Contracts. 

231.  Contracts  of  Decedent. 

232.  Personal  Representative  not  Authorized  to  Carry  on  Decedent's 

Business. 

233.  Liability  for  Carrying  on  Decedent's  Business. 

234.  Devastavit,  Definition. 

235.  Liability  for  a  Devastavit. 

236.  Rights  in  Regard  to  Negotiable  Instruments. 

§  218.  General  powers  of  executor  or  administrator. 
An  executor  or  administrator  is  an  officer  of  the 
court  governed  by  the  statutes,  and  the  orders  of  the 
court  but  possessing  large  discretionary  powers.  He 
is  not  the  agent  of  the  heirs,  legatees,  devisees  or  credi- 
tors, though  usually  himself  having  an  interest  in  the 
estate.  He  has  no  right  to  do  any  act  which  will  bene- 
fit his  interests  at  the  expense  of  others  or  to  give  any 
preference,  except  that  given  by  law,  to  one  class 
above  another.  His  management  should  be  such  as 
(322) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §§  219,  220 

will  conserve  the  interests  of  the  estate  as  a  whole, 
and  the  rights  of  all  parties  therein.1 

§  219.    Actions  against  the  estate. 

He  represents  the  estate  in  all  matters  in  which  it 
has  an  interest,  and  should  appear  and  defend  against 
all  actions  pending  against  the  decedent  which  were  re- 
vived by  the  plaintiffs  and  actions  or  proceedings 
brought  against  the  estate.  He  is  the  only  proper 
party  to  defend,  and  has  the  right  to  control  all  actions 
against  the  estate  without  interference  from  the 
legatees  or  next  of  kin,2  except  that  an  heir  or  legatee 
may  appear  in  a  suit  to  protect  his  own  rights  where 
there  is  collusion  between  parties  representing  adverse 
interests  and  the  legal  representative.3 

In  all  matters  depending  on  his  discretion,  he  should 
use  the  same  degree  of  care,  prudence  and  judgment 
a  man  of  average  ability  exercises  in  the  transaction 
of  his  own  private  business.4 

§  220.    Management  of  real  estate. 

Such  real  estate  of  his  decedent  as  he  is  required 
to  take  into  his  possession,5  lands  purchased  on  execu- 
tion sale  on  judgments  in  favor  of  the  estate,  or  bid 

1  Henry  v.  Henry,  73  Neb.  746,  103  N.  W.  441;  Hibner  v.  Wilson, 
83  Neb.  259,  116  N.  W.  522;  Thorson  v.  Hooper,  57  Or.  78,  109  Pac. 
368;  L.  O.  L.,  §  1165. 

2  Sharp  r.  Citizens'  State  Bank,  70  Neb.  758,  98  N.  W.  50;  Buchanan 
v.  Buchanan,  75  N.  J.  Eq.  274,  71  Atl.  745. 

3  Bine  v.  Bine,  91  Neb.  248,  135  N.  W.  1051. 

<  Dundas  v.  Carson,  25  Neb.  495,  41  N.  W.  449;  Benjamin  v.  Bush, 
89  Neb.  334,  11S-N.  W.  602. 
6  Section  199,  supra. 

(323) 


§220  PROBATE    AND    ADMINISTRATION.  [Chap.  19 

in  on  mortgage  foreclosure,  should  be  so  managed  as 
to  bring  in  as  large  an  income  as  their  character  and 
condition  will  permit,  and  he  is  accountable  for  all 
rents  and  profits  received  therefrom,6  but  he  is  not 
liable  for  rents  which  are  uncollectible.7 

He  has  power  to  execute  a  lease  of  the  real  estate, 
but  not  for  a  term  longer  than  the  close  of  the  adminis- 
tration,8 and  may  recover  possession  of  lands  from  a 
tenant  by  forcible  detention  proceedings.9 

His  authority  over  the  various  classes  of  lands  which 
come  into  his  possession  is  substantially  the  same, 
except  that  lands  taken  for  debts  take  the  place  of  the 
personal  assets  of  the  estate  which  were  a  lien  upon 
them,  and  as  a  general  rule  should  be  sold  for  pay- 
ment of  debts  in  preference  to  others.  In  some  juris- 
dictions they  may  be  sold  without  leave  of  the  court.10 

He  must  pay  the  taxes  and  assessments  whether  they 
became  a  lien  after11  or  before  the  death  of  his  dece- 
dent,12 and  keep  the  buildings  insured13  and  in  tenant- 
able  repair.14 

«  Tunnicliff  v.  Fox,  68  Neb.  811,  94  N.  W.  832;  In  re  Holderbaum, 
82  Iowa,  69,  47  N.  W.  898. 

I  In  re  Moore's  Estate,  96  Cal.  522,  31  Pac.  584.     See,  also,  §§  414, 
424,  post. 

8  Jackson  v.  O'Rorke,  71  Neb.  418,  98  N.  W.  1068. 

9  Nicrosi  v.  Phillips,  91  Ala.  299,  8  South.  561. 

10  Stevenson  v.  Polk,  71  Iowa,  278,  32  N.  W.  340;  Little  v.  Lesia, 
5  Mich.  119;  Thomas  v.  Le  Baron,  10  Met.  (Mass.)  403. 

II  Long  v.  Landman,  118  Mich.  174,  76  N.  W.  374. 

12  Chandler  v.  Chandler,  87  Ala.  300,  8  South.  153;  Jaffrey  v.  Smith 
(N.  H.),  80  Atl.  504. 

13  Wiggins  v.  Swett,  6  Met.  (Mass.)  194. 

14  Eev.  Stats.,  e.  17,  §  102,  [1366] ;  L.  O.  L.,  9  1185. 

(324) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  221 

§  221.    Power  of  executor  to  sell  real  estate. 

An  administrator  has  no  inherent  authority  to  sell 
the  real  estate  of  his  decedent,  nor  has  an  executor,  un- 
less it  has  been  given  by  the  will.15  Such  power  need 
not  be  given  by  express  direction,  but  by  implication. 
A  direction  to  an  executor  to  divide  real  estate,  when 
the  conditions  of  the  same  or  the  number  of  shares 
are  such  as  to  make  a  sale  imperative,16  or  a  provision 
directing  that  the  estate  be  disposed  of  for  certain  pur- 
poses, and  the  proceeds  distributed  by  the  executor 
without  explicitly  empowering  him  to  make  the  sale,17 
give  him  an  implied  power  of  sale ;  and  generally  when 
a  testator,  in  the  disposition  of  his  estate,  imposes  on 
his  executor  trusts  to  be  executed  or  duties  to  be  per- 
formed which  require  for  their  execution  or  perform- 
ance a  power  or  right  to  make  a  sale,  the  executor  takes 
such  powers  and  authority  as  will  enable  him  to  exe- 
cute the  trust  and  perform  the  duties  devolving  upon 
him.18 

Under  a  general  power  of  sale  he  may  sell  any  lands 
of  his  decedent,  including  the  homestead  property  or 
so  much  thereof  as  may  be  necessary,19  subject,  of 

15  Lippincott's  Exr.  v.  Lippincott,  19  N.  J.  Eq.  121.     See  L.  O.  L., 
§§  1248.  1263. 

16  Bonacum  v.  Manning,  85  Neb.  60,  122  N.  W.  711;  Chick  v.  Ives, 
2  Xc-b.  Unof.  879,  90  N.  W.  751. 

17  Schroeder  v.  Wilcox,  39  Neb.   136,  57  N.  W.   1031;   Franklin  v. 
O-good,  2  Johns.  Ch.  (N.  Y.)  19;  Lindley  v.  O'Reiley,  50  N.  J.  L.  636, 
35  Atl.  379;  Kite's  Devisees  v.  Kite's  Exr.,  93  Ky.  257,  20  S.  W.  778; 
Peter  v.  Beverly,  10  Pet.  (U.  S.)  532;  Jennings  v.  Smith,  29  111.  116. 

18  Bonacum  v.   Manning,   85   Neb.   60,   122   N.   W.   711;   Lindley  v. 
O'Reiley,  50  N.  J.  L.  636,  15  Atl.  379;  Cook  v.  Cook   (N.  J.  Ch.),  47 
Atl.  732. 

l»  Willier  v.  Cummings,  91  Neb.  571,  136  N.  W.  559. 

(325) 


§  221  PROBATE    AND    ADMINISTRATION.  [Chap.  19 

course,  to  homestead  rights,20  or  lands  bid  in  on  mort- 
gage foreclosure,  or  purchased  at  execution  sale  on  a 
judgment  in  favor  of  the  estate.21 

A  sale  under  a  general  power  must  be  for  cash,  or 
cash  and  note  secured  by  mortgage  on  the  land,  for  the 
balance.  He  cannot  take  other  land  in  whole  or  part 
payment.22 

If  the  power  is  limited  the  sale  can  be  made  only 
under  the  circumstances  and  conditions  defined  in  the 
will.23  If  there  are  several  executors  the  deed  must 
be  executed  by  all;  but  in  the  event  of  the  death  of 
one  or  more,  the  power  vests  in  the  survivor  or 
survivors.24 

Under  the  Oregon  practice,  an  executor  or  adminis- 
trator with  the  will  annexed  may  sell  real  estate  of  his 
testator  under  a  power  of  sale  given  him  by  the  will 
without  an  order  of  court,  but  he  shall  be  bound  to 
conduct  the  sale  and  make  a  return  thereof  in  all  re- 
spects as  if  it  were  made  by  order  of  the  court,  unless 
there  are  special  directions  in  the  will  concerning  the 
manner  and  terms  of  sale,  in  which  case  he  shall  be 
governed  by  such  directions  in  all  respects.  Sales  so 
made  in  accordance  with  the  provisions  of  the  will, 
where  the  property  has  been  sold  and  transferred  in 
good  faith,  and  the  consideration  paid  therefor,  are 
declared  in  all  respects  valid  and  binding.25  Such 

20  Section  391,  post. 

21  Battey  v.  Battey,  94  Neb.  729,  144  N.  W.  786;  Williams  v.  Towl, 
65  Mich.  204,  31  N.  W.  835. 

22  Taylor  v.  Galloway,  1  Ohio  St.  232;  Ross  v.  Barr  (Ky.),  53  S.  W. 
658. 

23  Arlington  State  Bank  v.  Paulsen,  55  Neb.   717,  78  N.  W.  303; 
Feaster  v.  Ragan,  135  Iowa,  633,  113  N.  W.  479. 

24  Rev.  Stats.,  c.  17,  S  72,  [1336]. 

25  L.  O.  L.,  S  1263. 

(326) 


Chap.  19]  MANAGEMENT   OP  ESTATES.  §  222 

sales  must  therefore,  unless  the  will  otherwise  directs, 
be  made  at  public  auction  and  upon  notice,26  except  in 
cases  where  an  order  is  obtained  on  application  to  the 
county  court  for  a  private  sale.27 

All  executors'  and  administrators'  sales  of  real  es- 
tate must  be  reported  to  the  county  court  and  an  order 
of  confirmation  entered  in  the  same  manner  as  sales 
under  order  of  the  court.28  The  rule  does  not  apply  to 
lands  devised  to  an  executor  as  a  trustee  with  power 
to  sell  for  payment  of  debts  and  express  power  to  sell 
the  residue  for  other  purposes.  Title  vesting  in  him, 
confirmation  is  not  necessary.29  The  sale  cannot  be 
made  by  the  trustee  while  still  acting  as  executor.  He 
cannot  perform  the  duties  of  trustee  until  his  account 
as  executor  is  settled,  his  discharge  granted,  and  he 
qualifies  as  such  officer.30 

§  222.  Sales  by  administrator  with  the  will  annexed. 
The  general  powers  given  an  administrator  with  the 
will  annexed  by  the  statute  give  him  the  right  to  sell 
real  estate  when  required  by  the  will  for  the  purposes 
of  distribution  and  division,  in  the  same  manner  as  an 
executor,  though  the  latter  may  be  given  a  broad  dis- 
cretion in  regard  to  the  time,  place  or  terms  of  such 
sale.31  Where  a  sale  is  not  necessary  for  the  purposes 
of  administration,  and  the  terms  of  the  grant  clearly 

26  L.  O.  L.,  §  1257. 

27  See  Sales  of  Real  Estate,  post. 

28  Northrop  v.  Marquam,  16  OP.  173,  18  Pac.  449. 

29  Brown  v.  Brown,  7  Or.  285. 

so  in  re  Roach's  Estate,  50  Or.  199,  92  Pac.  118. 

31  Schroeder  v.  Wilcox,  39  Neb.  136,  57  N.  W.  1031;  Koopman  T. 
Carroll,  50  Neb.  824,  70  N.  W.  395;  Vernor  v.  Colville,  54  Mich.  281, 
20  N.  W.  75;  Davis  v.  Hoover,  112  Ind.  423,  14  N.  E.  468;  Mott  v. 
Ackerman,  92  N.  Y.  539. 

(327) 


§  222  PROBATE    AND   ADMINISTRATION.  [Chap.  19 

indicate  a  personal  confidence  or  special  reliance  on 
the  judgment  of  the  executor,  it  being  manifest  that 
the  testator  intended  to  leave  the  question  whether  the 
power  should  be  exercised  or  not  wholly  dependent 
on  the  judgment  of  the  donee,  such  power  is  in  the 
nature  of  a  personal  trust,  and  none  but  the  executor 
can  execute  it.32 

Such  administrator  of  a  foreign  will  derives  his 
power  to  sell  from  the  statutes  of  this  state.33 

Form  No.  96. 
EXECUTOR'S  DEED  EXECUTED  PURSUANT  TO  POWER. 

Know  all  men  by  these  presents,  that  I,  C.  D.,  of  the  county  of 
and  state  of  Nebraska,  as  executor  of  the  estate  of  A.  B.,  late 


of  said  county,  deceased,  pursuant  to  the  power  conferred  upon  me 
as  such  executor  by  the  will  of  the  said  A.  B.,  to  sell  the  real  estate 
of  which  he,  the  said  A.  B.,  was  seised  at  the  time  of  his  death,  in 

consideration  of  the  sum  of  dollars  to  me  in  hand  paid,  the 

receipt  whereof  is  hereby  acknowledged,  do  hereby  grant,  bargain, 
sell,  convey,  and  confirm  unto  L.  M.,  of  the  county  aforesaid,  the  fol- 
lowing described  estate,  situated  in  the  county  of and  state 

of  Nebraska  [describe  property],  together  with  all  the  tenements, 
hereditaments,  and  appurtenances  thereunto  belonging  or  in  any  wise 
appertaining. 

To  have  and  to  hold  the  above-described  premises  unto  the  said 
L.  M.,  and  to  his  heirs,  executors,  administrators,  and  assigns,  forever. 

And  I  do  hereby,  in  my  capacity  as  executor  as  aforesaid,  and  pursu- 
ant to  the  power  so  conferred  upon  me  by  the  will  of  said  A.  B.  as 
aforesaid,  covenant  with  the  said  L.  M.,  his  heirs,  executors,  adminis- 
trators, and  assigns,  that  I  am,  by  virtue  of  the  power  aforesaid,  law- 
fully seised  of  said  above-described  premises  as  such  executor  as 
aforesaid,  that  they  are  free  from  all  encumbrances,  and  that  I,  in  my 

32  Crouse  v.  Peterson,  130  Cal.  169,  62  Pac.  473;  Drummond  v.  Jones, 
44  N.  J.  Eq.  53,  13  Atl.  611;  Naundorf  v.  Schuman,  41  N.  J.  Eq.  14,  2 
Atl.  609;  Belcher,  v.  Branah,  11  R.  I.  226. 

33  Crouse  v.  Peterson,  130  Cal.  169,  62  Pac.  473.     See  §  267,  post. 

(328) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  223 

capacity  as  such  executor,  have  lawful  authority  to  sell  the  same; 
[and  I  do  hereby,  in  my  official  capacity  as  executor  of  the  said  estate 
of  said  A.  B.,  covenant  and  agree  to  warrant  and  defend  the  said 
premises  against  the  lawful  claims  of  all  persons  whomsoever]. 

Signed  this day  of ,  19 — . 

(Signed)     C.  D. 
In  presence  of: 

E.  F. 

G.  H. 

State  of  Nebraska, 

County, — ss. 

On  this day  of ,  19 — ,  before  me,  B.  M.,  a  notary  pub- 
lic in  and  for  county,  Nebraska,  personally  appeared  C.  D., 

executor  of  the  estate  of  A.  B.,  deceased,  to  me  personally  known  to 
be  the  identical  person  described  in,  and  whose  name  is  affixed  as 
grantor  to,  the  foregoing  deed,  and  acknowledged  said  instrument  to 
be  bis  voluntary  act  and  deed  as  such  executor  for  the  purposes  therein 
stated. 

Witness  my  hand  and  official  seal  this day  of ,  19 — . 

(Official  Seal)  (Signed)     B.  M., 

Notary  Public. 
Commission  expires . 

§  223.    Sales  of  personal  property. 

At  common  law  an  executor  or  administrator  took 
a  full  title  and  jus  dispondendi  of  the  personal  estate.34 
The  only  statutory  restriction  on  this  right  is  one  com- 
pelling him  to  sell  when  all  the  heirs  residing  in  this 
state  request  him  so  to  do. 

He  may  obtain  an  order  from  the  county  court  for 
the  sale  of  personalty,  excepting  only  such  as  passes 
absolutely  to  the  surviving  spouse  or  children,  either 
at  public  auction  or  private  sale,  as  the  court  may 
direct;  if  at  public  auction,  the  court  must  direct  how 

84  Edney  v.  Baum,  70  Neb.  159,  97  N.  W.  252. 

(329) 


§  223  PROBATE   AND   ADMINISTRATION.  [Chap.  19 

notice  shall  be  given,35  or  he  may  sell  without  an  order 
of  the  court,  if  he  sees  fit  to  do  so.36 

This  statute  is  directory  and  not  mandatory.37  Its 
object  is  to  protect  the  personal  representative,  for  if 
he  sells  property  without  an  order  of  the  court  for  less 
than  its  appraised  value,  he  is  liable  for  the  difference.38 

He  has  no  right  to  trade  personal  property  for  real 
estate,  but  if  he  does  so  and  takes  the  title  in  the  name 
of  the  beneficiaries,  the  transaction  is  not  void.39 

A  purchase  of  real  estate  with  the  assets,  unless 
authorized  by  the  will,  is  a  conversion  of  them,  and 
the  representative  will  be  held  a  trustee  of  the  credi- 
tors, heirs  or  legatees.  The  remedy  in  such  case  is 
by  an  action  in  equity  to  subject  the  land  so  purchased 
to  the  payment  of  the  debt,  legacy  or  distributive 
share,  and  it  may  be  brought  by  any  party  who  has  an 
interest  in  the  estate.40 

In  Oregon  no  sale  of  personal  property  of  an  estate 
is  valid,  except  where  a  power  of  sale  is  given  by  the 

35  Rev.  Stats.,  c.  17,  §  240,  [1504]. 

36  Field  v.  Schieffelin,  7  Johns.  Ch.  (N.  T.)  155;  Rayner  v.  Pear- 
Ball,  3  Johns.  Ch.  (N.  Y.)   578;   Clark  v.  Blackington,  110  Mass.  369; 
Hamrick  v.  Craven,  39  Ind.  241;  Ladd  v.  Wiggin,  35  N.  H.  421;  Mar- 
shall Co.  v.  Hanna,  57  Iowa,  372,  10  N.  W.  745;  In  re  Radovich's 
Estate,  74  Cal.  536,  16  Pac.  321. 

37  Edney  v.  Baum,  70  Neb.  159,  97  N.  W.  252;  Mead  v.  Byington, 
10  Vt.  116;  Sherman  v.  Willett,  42  N.  Y.  146;  Flynn  v.  Chicago  & 
Great  Western  R.  Co.  (Iowa),  141  N.  W.  401. 

38  Rev.   Stats.,    c.    17,  §  239,    [1503];    Williams   v.    Ely,    13    Wis.    1; 
Munteith  v.  Rahn,  14  Wis.  210. 

39  Edney  v.  Baum,  70  Neb.  159,  97  N.  W.  252.     In  this  case  the 
grantees  in  the  deed  alleged  fraud  on  the  part  of  their  grantor.     The 
court  held  that  the  executor  could  affirm  the  sale  and  bring  an  action 
for  damages  or  could  rescind. 

40  Blake  v.  Chambers,  4  Neb.  90;  Griawold  v.  Frink,  22  Ohio  St.  79; 
Baldwin  v.  Tuttle,  23  Iowa,  67. 

(330) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  223 

will,  without  an  order  from  the  county  court  therefor.41 
This  statute  is  not  construed  as  directory.  It  abro- 
gates the  common-law  rule  but  leaves  with  him  the 
disposition  of  choses  in  action,  which  he  may  sell  or 
dispose  of  by  indorsement  to  another  or  to  a  dis- 
tributee, without  an  order  of  the  county  court,  and 
such  transfer  passes  the  title  to  the  extent  that  the 
transferee  or  distributee  can  maintain  an  action  on 
them,  and  the  makers  cannot  defend  on  the  ground  of 
want  of  authority  on  the  part  of  the  personal  repre- 
sentative to  make  such  transfers,42  and  also  permits 
the  sale  or  transfer  of  intangible  assets,  like  claims  for 
damages.43 

The  court  acquires  jurisdiction  by  the  filing  of  a 
verified  petition,  and  no  notice  or  citation  is  neces- 
sary.44 If  the  court  finds  it  for  the  best  interests  of 
the  estate,  he  may  order  the  personalty  sold  at  either 
public  auction  or  private  sale.45 

He  may  order  a  stock  of  goods  sold  in  the  regular 
course  of  business,  and  the  necessary  expenses,  such 
as  clerk  hire,  rent,  heat,  etc.,  can  be  adjusted  as  costs 
of  administration  on  the  final  account.46  Property 
specifically  bequeathed  should  not  be  sold  so  long  as 
any  personal  assets  applicable  to  the  debts  remain.47 

41  L.  O.  L.,  §§  1248,  1263. 

42  Welder  v.  Osborn,  20  Or.  310,  25  Pac.  715. 

43  Section  268,  post. 

44  Rev.  Stats.,  c.  17,  §  240,  [1504];  L.  O.  L.,  §  1248. 

45  Rev.  Stats.,  c.  17,  §  240,  [1504],  also  providing  that  when  the  sale 
is    at    public    auction,    the   court   shall    direct    how   notice   be   given; 
L.  0.  L.,  §§  1250,  1251,  requiring  public  sales  to  be  in  the  same  form 
as  sales  on   execution. 

46  In  re  Osburn's  Estate,  36  Or.  8,  58  Pac.  521. 

«  L.  0.  L.,  §  1251;  Howe  v.  Kern,  63  Or.  496,  125  Pac.  837. 

(331) 


§223  PEOBATE    AND    ADMINISTRATION.  [Chap.  19 

Form  No.  97. 

APPLICATION  OF  EXECUTOR  OR  ADMINISTRATOR  FOR  LEAVE 
TO  SELL  PERSONALTY. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
he  is  the  duly  appointed  administrator  [executor]  of  said  estate-,  that 
among  the  assets  of  said  estate,  as  appears  by  the  inventory  thereof, 
are  one  hundred  head  of  three  year  old  steers,  branded  — N — ,  now 

on  the  range  north   of  in  said   county;   that  said  steers  are  in 

good  marketable  condition,  and  are  in  such  condition  as  to  be  sold 
at  the  highest  market  price;  that  the  debts  allowed  against  said  estate, 
and  the  expenses  of  administration,  as  appear  from  the  records  and 
files  in  said  proceeding,  amount  to  the  sum  of  $2,000,  and  that  your 
petitioner  has  no  money  in  his  possession  applicable  to  the  payment 
of  the  same,  and  that  there  are  also  legacies  unpaid  of  the  value  of 
$2,000. 

Your  petitioner  therefore  prays  that  said  court  may  order  said 
personalty  above  described  to  be  sold  at  private  sale  [at  public  auc- 
tion, and  that  notice  of  the  time  and  place  of  said  sale  be  given  in 
such  manner  as  said  court  may  direct]. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  98. 
ORDER  FOR  SALE  OF  PERSONALTY. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  of  C.  D.,  administrator  of  said  estate,  for 
leave  to  sell  one  hundred  head  of  three  year  old  steers,  branded  — N — , 
the  personal  property  of  said  estate,  and  was  submitted  to  the  court, 
upon  consideration  whereof  the  court  finds  that  the  best  interests  of 
said  estate  will  be  subserved  by  said  sale. 

It  is  therefore  ordered  that  said  C.  D.  be  and  he  hereby  is  author- 
ized to  sell  said  personalty  above  described  at  private  sale  [at  public 
auction,  and  that  he  give  notice  of  the  time  and  place  of  said  sale 

by  causing  notice  thereof  to  be  posted  in  conspicuous  places  in 

said    county,    and    by    publication    for    two    weeks    in    the  ,  a 

newspaper  printed  and  published  in  said  county]. 

(Signed)     J.  K., 
County  Judge. 

(332) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §§  224-226 

§  224.    Executor  or  administrator  not  to  be  a  pur- 
chaser. 

An  executor  or  administrator  should  not  purchase 
any  personal  property  of  his  decedent,  either  directly 
or  indirectly,  through  a  third  party.48  If  the  sale  is 
for  a  full  price,  and  there  is  an  entire  absence  of  fraud, 
it  is  binding  on  the  beneficiaries  of  the  estate,  who  have 
notice  of  the  same,  until  set  aside  in  an  action  for  that 
purpose.49  If  fraud  is  shown,  it  is  void,  except  where 
the  parties  interested  had  full  knowledge  of  the  same 
and  did  not  bring  the  action  within  the  statutory 
period.  Their  acquiescence  amounts  to  an  approval 
of  the  act  of  the  representative.50 

§  225.    Caveat  emptor. 

The  maxim  caveat  emptor  applies  strictly  to  all  sales 
of  personalty  by  an  executor  or  administrator  in 
his  official  capacity.  He  warrants  nothing,  and  sells 
whatever  interest  the  decedent  may  have  had  in  the 
property.51 

§  226.    Right  of  creditor,  heir  or  legatee  to  follow 

assets. 

In  the  absence  of  fraud,  the  personal  assets  of  an 
estate  cannot  be  followed  by  a  creditor,  heir  or  legatee 

«  Appeal  of  Grim,  105  Pa.  375;  Clark  v.  Blackington,  110  Mass. 
3C9;  Stronach  v.  Stronach,  20  Wis.  129;  Johnson  v.  Blackman,  11  Conn. 
3K1;  Cox  v.  John,  32  Ohio  St.  538;  Caldwell  v.  Caldwell,  45  Ohio  St. 
512.  15  N.  E.  297. 

49  Shelby  v.  Creighton,  65  Neb.  485,  91  N.  W.  369;  Appeal  of  Grim, 
105  Pa.  375. 

50  Shelby  v.  Creighton,  65  Neb.  485,  91  N.  W.  369. 

51  Bingham    v.    Maxey,    15    111.    295;    Bartholemew    v.    Warner,    32 
Conn.  98. 

(333) 


§  226  PROBATE    AND    ADMINISTRATION.  [Chap.  19 

into  the  hands  of  a  party  to  whom  they  were  sold  by  a 
personal  representative,  whether  the  sale  was  made  by 
the  order  of  the  court  or  not.52  As  far  as  the  pur- 
chaser is  concerned,  his  title  is  completed  by  sale  and 
delivery,  and  what  price  is  paid,  or  what  may  become 
of  the  same,  is  of  no  concern  to  him,63  except  where 
there  is  actual  fraud  or  collusion  shown  which  is  known 
to  and  participated  in  by  the  purchaser,54  as  where 
property  is  sold  at  a  price  far  below  its  market  value, 
or  for  the  purpose  of  raising  money  to  be  used  for  the 
personal  interests  of  the  executor  or  administrator.55 
An  administrator  de  boms  non  can  recover  the  value 
of  them  from  his  predecessor  or  his  predecessor's 
bondsmen.56  Any  party  interested  may  bring  the 
action  to  set  aside  the  sale,  although  the  others  are 
satisfied  with  it;57  and  a  sale  will  be  set  aside  where, 
by  fraudulent  devices  and  collusion  between  the  per- 
sonal representative  and  a  part  of  the  creditors,  the 
assets  of  the  estate  were  so  manipulated  as  to  shut  out 
one  of  the  creditors  entirely.58 

52  Thomas  v.  Reister,  3  Ind.  369;  Speelman  v.  Culbertson,  15  Ind. 
441;  Walker  v.  Craig,  18  111.  116;  Lothrop  v.  Wightman,  41  Pa.  297. 

53  Bond  v.  Zeigler,  1  Ga.  324. 

54  Shaw  v.  Spencer,  100  Mass.  382;  Sherburne  v.  Goodwin,  44  N.  H. 
271. 

55  Rogers  v.  Zook,  86  Ind.  237;   Atcheson  v.  Scott,  51  Tex.   213; 
Austin  v.  Willson's  Exrs.,  21  Ind.  252;  Carter  v.  Manufacturers'  Nat. 
Bank,  71  Me.  448;  Green  v.  Sargeant,  23  Vt.  466. 

56  State  r.  Fulton,  35  Mo.  323;  Cowgill  v.  Linville,  20  Mo.  App.  138; 
State  v.  Dulle,  45  Mo.  269. 

57  Litchfield  v.  Cudworth,  15  Pick.  (Mass.)  23. 

58  Carson  v.  Fears,  91  Ga.  482,  17  S.  E.  342. 

(334) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  227 

§  227.    Assets  of  estate  held  by  heirs  or  legatees. 

A  personal  representative  should  retain  in  his  pos- 
session and  take  charge  of  all  the  assets  of  the  estate, 
both  real  and  personal,  until  ordered  by  the  court  to 
dispose  of  them  for  the  payment  of  debts  and  allow- 
ances, and  distributing  them  among  those  entitled 
thereto;  but  if  a  devisee,  heir  or  legatee  shall  give  a 
bond  to  the  county  judge,  with  such  surety  or  sureties 
as  he  may  direct,  to  secure  the  payment  of  the  just 
proportion  of  such  heir,  devisee  or  legatee  of  the  debt 
and  expenses  of  the  estate,  or  such  part  thereof  as 
remains  unpaid,  and  to  indemnify  the  executor  or  ad- 
ministrator against  the  same,  he  may  receive  from  the 
personal  representative  his  proportionate  share  of  the 
estate.59 

Irrespective  of  the  statute,  a  personal  representative 
has  the  right  to  pay  to  a  legatee  or  distributee  the 
whole  or  a  part  of  his  share  of  the  estate  at  any  time 
pending  administration,  without  taking  a  bond,60  but 
by  making  such  payments  he  becomes  personally  liable 
upon  his  own  bonds  should  he  not  retain  in  his  hands 
sufficient  assets  of  the  estate  to  pay  the  debts  and  ex- 
penses of  administration.61  If  there  are  no  debts,  and 
the  condition  of  the  estate  permits  it,  the  settlement 
of  the  estate  may  be  greatly  facilitated,  and  the  per- 
sonal representative  spared  much  labor,  by  making 
payments  to  the  legatees  or  distributees  whenever  the 
funds  in  his  hands  warrant  it.  Such  payments,  it  has 
been  held,  do  not  take  away  the  right  of  the  personal 

»  Rev.  Stats.,  c.  17,  §  232,  [1496]. 

W  Charlton's  Appeal,  88  Pa.  476. 

«1  Edmunds'  Admr.  v.  Scott,  78  Va.  720. 

(335) 


§  227  PROBATE    AND    ADMINISTRATION.  [Chap.  19 

representative  to  recover  from  such  legatees  or  dis- 
tributees the  money  so  paid  them,  or  so  much  thereof 
as  is  needed  to  pay  off  the  debts,  provided,  however, 
such  debts  were  known  to  the  personal  representative 
at  the  time  he  made  the  payments;62  but  the  supreme 
court  of  Indiana  holds  that  he  may  compel  them  to 
refund  in  any  event.63  The  remedy  of  the  creditor  in 
a  case  of  this  kind,  therefore,  is  by  an  action  on  the 
bond  of  the  personal  representative,  and  the  remedy 
of  the  personal  representative  is  by  an  action  to  recover 
from  the  legatees  or  distributees. 

Under  the  Oregon  practice,  the  court  has  power,  at 
any  time  after  the  filing  of  the  first  annual  account, 
on  the  application  of  an  heir,  devisee  or  legatee,  to 
enter  an  order  for  the  delivery  to  him  of  possession  of 
real  estate  and  the  payment  of  his  legacy  or  distribu- 
tive share,  or  any  part  of  the  same.  Notice  must  be 
given  the  executor  or  administrator  ten  days  before 
the  application  is  made.  -If  the  condition  of  the  estate 
warrants  it,  the  court  may  grant  the  petition  or  some 
part  of  it,  upon  condition  that  the  applicant  file  with 
the  clerk  within  a  time  in  the  order  specified  an  under- 
taking with  one  or  more  sufficient  sureties,  for  the 
benefit  of  whom  it  may  concern,  in  a  sum  double  the 
value  of  the  devise,  legacy  or  distributive  share,  upon 
condition  that  such  devisee,  legatee  or  heir  pay,  when 
required,  his  proportion  toward  satisfying  any  claims 
against  the  estate.84  The  sureties  must  have  the  same 
qualifications  as  sureties  in  bail  upon  arrest,  and  shall 
justify  in  the  same  manner.  The  costs  of  the  proceed- 
ing must  be  paid  by  the  applicant.65 

62  Musser  v.  Oliver,  21  Pa.  362;  Alexander  v.  Fisher,  18  Ala.  374; 
Walker  v.  Hill,  17  Mass.  380;  Montgomery's  Appeal,  92  Pa.  202,  37 
Am.  Bep.  670;  Munden  v.  Bailey,  70  Ala.  63. 

63  Smith  v.  Smith,  76  Ind.  236. 

64  L.  O.  L.,  §§  1305,  1306. 
«5  L.  O.  L.,  I  1307. 

(336) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  227 

Form  No.  98a — Oregon. 

PETITION   FOE    PAYMENT    OF   LEGACY   PENDING   ADMINIS- 
TRATION. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  E.  F.,  respectfully  represents  unto  the  court  that 
as  appears  from  the  first  semi-annual  account  of  C.  D.,  executor  of  :aid 
estate,  and  from  the  records  and  files  in  said  proceeding,  that  said 
executor  has  in  his  possession  personal  property  of  said  estate  con- 
sisting of  cash  on  hand  in  the  sum  of  $ ,  together  with  notes, 

secured  by  mortgages,  bonds  and  other  securities,  as  more  fully  ap- 
peais  from  the  inventory  of  said  estate  and  said  account,  all  of  the 
value  of  $ ;  that  all  claims  and  demands  that  have  been  pre- 
sented to  said  executor  have  been  allowed  and  ordered  paid  by  said 
court,  amounting  to  the  sum  of  $ ,  and  to  the  best  of  your  peti- 
tioner's knowledge  and  belief  there  are  no  other  creditors  of  said 
estate  than  those  whose  claims  have  been  ordered  paid. 

Your  petitioner  therefore  prays  that  an  order  of  said  court  be  made 
and  entered  directing  said  executor  to  pay  to  him,  said  E.  F.,  the 
amount  of  said  legacy  upon  his  filing  in  said  court  an  undertaking  to 
be  approved  by  the  clerk  thereof  as  provided  by  law. 

That  by  the  terms  of  said  will  of  said  A.  B.  your  petitioner  is  given 
a  legacy  of  $ . 

Your  petitioner  therefore  prays  that  an  order  of  said  court  be  made 
and  entered  directing  said  executor  to  pay  to  him,  said  E.  F.,  the 
amount  of  said  legacy  upon  his  giving  an  undertaking  to  be  approved 
by  said  clerk  of  said  court  as  provided  by  law. 

Dated  this  -        -  day  of  ,  19—. 

(Signed)     E.  F. 

[Add  verification.] 

Form  No.  99. 

BOND  OF  HEIR  OR  LEGATEE  ON  RECEIPT  OF  HIS  SHARE  OF 
THE  ESTATE. 

Know  all  men  by  these  presents,  that  we,  E.  F.,  as  principal,  and 

G.  H.  and  R.  T.,  as  sureties,  all  of  county,  Nebraska,  are  held 

and  firmly  bound  unto  the  county  judge  of  said  county, 

Nebraska,  in  the  penal  sum  of dollars,  for  which  payment  well 

and  truly  to  be  made  we  do  hereby  jointly  and  severally  bind  ourselves, 
our  heirs,  executor?,  administrators,  and  assigns  by  these  presents. 

Dated  this  —  day  of  ,  19 — . 

22— Pro.  Ad. 


§  228  PROBATE    AND   ADMINISTRATION.  [Chap.  19 

Whereas,  E.  F.  has  received  from  C.  D.,  administrator  of  the  estate 

of  A.  B.,   deceased,   the   sum   of  dollars,  being  the   estimated 

amount  of  the  distributive  share  of  said  estate  belonging  to  said  E.  P. 
after  payment  of  debts,  allowances,  and  expenses  of  administration: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  E.  F.  shall  well  and  truly  pay  or  cause  to  be  paid  to  the  said 
C.  D.,  administrator  as  aforesaid,  his  proportionate  share  of  the  debts 
and  expenses  of  administration  of  said  estate,  or  such  part  thereof  as 
shall  remain  unprovided  for,  to  the  extent  only  of  the  amount  of 

dollars,  so  received  by  the  said  E.  F.  from  the  said   C.  D., 

administrator  as  aforesaid,  and  shall  indemnify  the  said  C.  D.,  admin- 
istrator as  aforesaid,  to  the  extent  only  of  the  amount  of  -  —  dol- 
lars, then  these  presents  shall  be  null  and  void;  otherwise  to  remain 
in  full  force  and  effect. 

(Signed)     E.    F. 

G.   H. 

E.    T. 

Approved  as  to  form  and  sufficiency  of  security  this day  of 

,  19-. 

(Signed)     J.  K., 
County  Judge. 

§  228.    Contribution  by  heirs,  devisees  or  legatees  to 

raise  money  for  payment  of  debts. 
All  devisees  or  legatees  who  shall,  with  the  consent 
of  the  executor,  or  otherwise,  have  possession  of  the 
estate  given  them  by  the  will  before  the  liability  of 
the  estate  for  the  payment  of  debts,  allowances,  shares 
of  posthumous  child  or  children  omitted  from  the  will 
is  determined,  shall  hold  the  same  subject  to  said  lia- 
bility, and  shall  be  held  to  contribute  according  to  their 
respective  liabilities,  to  the  executor  or  to  any  devisee 
or  legatee  from  whom  the  estate  devised  to  him  has 
been  taken  for  the  payment  of  debts  and  expenses,  and 
to  make  up  the  share  of  a  child  born  after  the  making 
of  the  will,  or  of  a  child  or  the  issue  of  a  child  omitted 
from  the  will ;  and  the  persons  who  may,  as  heirs,  have 
received  the  estate  not  disposed  of  by  the  will,  shall 

(338) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  228 

be  liable  to  contribute  in  like  manner  as  the  devisees 
or  legatees.66  If  any  of  the  persons  liable  to  con- 
tribute shall  be  insolvent  and  unable  to  pay  their  just 
share,  the  others  shall  be  severally  liable  for  the  loss 
occasioned  by  such  insolvency,  in  proportion  to  and 
to  the  extent  of  the  estate  they  may  have  received; 
and  if  any  of  the  persons  so  liable  to  contribute  shall 
die  before  having  paid  their  share,  the  claim  shall  be 
valid  against  their  estate,  in  the  same  manner  as  if  it 
had  been  their  proper  debt.  The  county  court  may, 
by  decree  for  that  purpose,  settle  the  amount  of  the 
liabilities  as  above  provided,  and  decree  how  much 
and  in  what  manner  each  person  shall  contribute,  and 
issue  execution,  as  circumstances  may  require,  and  the 
claimant  may  also  have  a  remedy  in  any  proper  action 
or  complaint  in  law  or  equity.67 

A  provision  substantially  like  the  above,  requiring 
a  contribution  to  make  the  share  owing  by  an  insolvent, 
has  been  held  not  to  apply  to  cases  in  which  one  legatee 
or  distributee  has  received  more  than  his  share,  at  the 
expense  of  another  distributee.  The  remedy  in  such 
cases  is  by  bill  in  equity.68 

Form  No.  100. 

PETITION   FOB   LEGATEE    OR    DEVISEE   TO   PAY   SHAKE   OF 

INSOLVENT. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  uiito  the  court  that 
on  the  day  of  ,  19 — ,  letters  testamentary  upon  said  es- 
tate were  issued  to  him  out  of  and  under  the  seal  of  said  court;  that 
he  now  is  the  executor  of  said  estate;  that  L.  M.,  of  the  county  afore- 
said, is  a  devisee  under  said  will  of  the  following  described  realty 

66  Rev.  Stats.,  c.  17,  §  56,  [1320]. 

«7  Rev.  Stats.,  c.  17,  §§  57,  58,  [1321],  [1322]. 

«8  Stephenson  v.  Axson,  1  Bail.  Eq.  (S.  C.)  274. 

(339) 


§  228  PROBATE   AND   ADMINISTRATION.          [Chap.  19 

[describe  realty] ;  that  at  the  time  of  the  death  of  the  said  A.  B., 
said  L.  M.  was  in  possession  of  said  realty,  and  has  ever  since  re- 
mained in  possession  thereof;  that  said  L.  M.  has  paid  to  your  peti- 
tioner the  sum  of  dollars,  the  reasonable  rental  value  of  said 

premises;   that  on  the  day  of  ,  19 — ,  said  will,  with   a 

certificate  of  probate  attached  thereto,  was  duly  recorded  in  the  office 
of  the  register  of  deeds  of  said  county;  that  on  the  —  —  day  of 

• ,  19 — ,  your  petitioner  delivered  to  B.  M.,  who  is  legatee  thereof 

urder  said  will,  a  certificate  for  forty  shares  of  stock  of  the  First 
National  Bank  of  Fremont,  Nebraska;  that  there  have  been  allowed 
against  said  estate  debts  of  the  amount  of  four  thousand  dollars 
($4,000),  and  a  dividend  of  two  thousand  dollars  ($2,000)  has  been 
paid  thereon;  that  the  time  for  proving  debts  against  said  estate  has 
expired,  and  that  there  are  no  assets  in  his  possession  with  which  to 
pay  the  balance  of  said  debts;  that  neither  the  said  L.  M.  nor  the 
said  B.  M.  have  given  your  petitioner  any  bond  or  security  to  indem- 
nify him  for  the  property  in  their  possession  as  aforesaid;  that  the 
pr  sent  value  of  the  real  estate  above  described  in  the  possession  of 
said  L.  M.  is  the  sum  of  four  thousand  dollars  ($4,000),  and  the  pres- 
ent value  of  said  bank  stock  is  the  sum  of  six  thousand  dollars 

($6,000);  that  on  the  day  of  ,  19 — ,  said  B.  M.  made  a 

gen  ral  assignment  of  all  his  property  for  the  benefit  of  his  creditors, 
and  previous  thereto  had  sold  and  transferred  said  certificate  of  shares 
of  stock;  that  the  assets  of  said  B.  M.  are  the  sum  of  -  -  dollars 

($ ),  and  the  debts  against  said  insolvent  estate  are  the  sum  of 

• dollars   ($ ),  including  petitioner's  claim,  and   that  said 

insolvent  estate  will  pay,  as  your  petitioner  is  informed  and  verily 
be  ieves,  the  sum  of  fifty  cents  on  the  dollar. 

Your  petitioner  therefore  prays  that  the  said  L.  M.  be  required  to 
contribute  the  sum  of  seven-tenths  of  two  thousand  dollars  to  your 
petitioner  for  the  payment  of  said  debts,  and  that  the  insolvent  es- 
tate of  said  B.  M.  contribute  the  sum  of  three-tenths  of  two  thousand 
dollars  therefor,  and  that  a  decree  may  be  entered  requiring  the  said 
L.  M.  to  pay  to  your  petitioner  the  sum  of  one  thousand  four  hun- 
dred dollars  ($1,400),  and  the  said  B.  M.,  insolvent,  the  sum  of  six 
hundred  dollars  ($600),  and  that  execution  may  issue  thereon  against 
the  said  L.  M.,  and  for  such  other  and  further  relief  as  may  be  just 
and  equitable. 

Da^ed  this day  of  ,  19 — . 

(Signed)     C.  D., 

By  F.   H.   B., 
His  Attorney. 

[Add  verification,  Form  No.  5.] 

(340) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  228 

Form  No.  101. 
NOTICE  TO  LEGATEE  OB  DEVISEE. 

State  of  Nebraska, 

• County, — ss. 

To  L.  M.,  and  G.  H.,  Assignee  of  B.  M.: 

Xrtice  is  hereby  given  that  on  the day  of ,  19 — ,  C.  D., 

executor  of  the  estate  of  A.  B.,  filed  his  petition  in  this  court,  the 
object  and  prayer  of  which  are  that  a  decree  may  be  entered  requir- 
ing you  and  each  of  you  to  contribute,  from  the  assets  of  the  estate 
of  the  said  A.  B.  in  your  possession,  to  the  said  C.  D.,  for  the  payment 
of  the  debts  of  the  estate  of  the  said  A.  B.  which  now  remain  dne 
and  unpaid. 

Said  petition  will  be  heard  by  the  county  court  of  said  county  at 

the   county    court   room   in    the   city   of ,    said    county,    on    the 

day  of ,  19 — ,  at  the  hour  of  9  o'clock  A.  M.  of  said  day. 

Dated  this day  of ,  19 — • 

(Signed)     J.  K., 
County  Judge. 

This  notice  should  be  served  on  the  legatees  or  dev- 
isees in  the  same  manner  as  a  summons,  and  ample 
time  given  them  to  prepare  for  the  hearing. 

Form  No.  102. 

DECREE  REQUIRING  LEGATEE  OR  DEVISEE  TO  CONTRIBUTE 
FOR  THE  PAYMENT  OF  DEBTS  AND  EXPENSES. 

[Tit'e  of  Cause  and  Court.] 

Now,  on  this  day  of  ,   19 — ,  this   cause   came   on  for 

hearing  upon  the  petition  of  C.  D.,  executor  of  said  estate,  for  a  de- 
cree requirirg  L.  M.,  and  G.  H.,  assignee  of  B.  M.,  to  contribute  from 
the  arsets  of  said  estate  in  their  possession  for  the  payment  of  the 
debts  of  said  estate,  and  the  evidence,  and  was  submitted  to  the  court. 
Said  L.  M.  and  G.  H.,  assignees,  each  appeared  in  person  and  by 
attorney: 

Whereupon  the  court  finds  that  due  notice  of  the  pendency  of  said 
petition  was  given  said  L.  M.  and  G.  H.;  that  L.  M.  is  in  possession 
of  assets  of  said  estate,  consisting  of  the  following  real  estate 
[descr'be  real  estate],  of  the  value  of  four  thousand  dollars,  and  that 
said  G.  H.,  assignee  of  B.  M.,  is  in  possession  of  assets  of  the  estate 

(341) 


§  228a  PROBATE    AND    ADMINISTRATION.  [Chap.  19 

consisting  of  personalty  of  the  value  of  six  thousand  dollars;  that  the 
said  B.  M.  is  insolvent,  and  that  the  assets  of  said  insolvent  are  suffi- 
cient to  pay  the  creditors  thereof,  including  the  indebtedness  to  said 
executor,  the  sum  of  fifty  cents  on  the  dollar;  that  the  debts  of  the 
estate  of  the  said  A.  B.  allowed  by  said  court  amount  to  the  sum  of 
four  thousand  dollars,  and  the  sum  of  two  thousand  dollars  has  been 
paid  thereon,  and  that  there  are  no  assets  of  said  estate  in  the  hands 
of  the  said  C.  D.  to  be  applied  upon  the  payment  of  said  debts. 

It  is  therefore  ordered  and  decreed  that  the  said  L.  M.  pay  to  the 
said  C.  D.  the  sum  of  one  thousand  four  hundred  dollars,  and  that  the 
said  G.  H.,  assignee,  pay  to  the  said  C.  D.  the  sum  of  six  hundred 
dollars;  that,  in  default  of  payment  by  the  said  L.  M.,  execution  issue 
against  him  thereon  for  the  sum  of  one  thousand  four  hundred  dollars. 

It  is  further  ordered,  the  said  G.  H.,  assignee,  assenting  thereto,  that 
a  certified  copy  of  this  decree  be  filed  in  the  case  entitled,  "In  the 
Matter  of  the  Assignment  of  B.  M.,"  in  this  court. 

(Signed)     J.  K., 
County  Judge. 

While  the  county  judge  has  jurisdiction  of  this  mat- 
ter, especially  conferred  upon  it  by  the  statute,  where 
there  is  any  contest  or  any  conflicting  interest,  the 
rights  of  all  the  parties  can  be  better  adjusted  by  a 
petition  in  equity  in  the  district  court. 

§  228a.    Recovery  of  property  from  distributees. 

Under  the  Oregon  practice,  when  the  distributees  or 
legatees  have  come  into  the  enjoyment  of  their  shares 
in  the  personal  property  before  the  administration  has 
been  completed,  and  it  subsequently  appears  that  the 
amount  of  such  shares,  or  a  part  of  them,  is  necessary 
for  the  payment  of  the  debts  and  expenses  of  adminis- 
tration, there  is  no  authority  granted  the  executor  or 
administrator  under  the  statute  to  bring  an  action  or 
proceeding  for  contribution,  as  in  Nebraska.  Such 
right  is  given  the  creditor  and  may  be  enforced  by 
action  in  equity  against  the  next  of  kin  or  legatees  in 
any  court  having  jurisdiction. 

(342) 


Chap.  19]  MANAGEMENT  OF  ESTATES.  §  228a 

The  action  can  only  be  maintained  by  a  creditor 
whose  claim  has  been  allowed  by  the  administrator, 
referee  or  county  court.69  In  the  case  of  both  testate 
and  intestate  estates,  the  next  of  kin  or  legatee  is  liable 
only  for  the  value  of  the  assets  actually  received  by 
him,  or  so  much  thereof  as  may  be  necessary  to  satisfy 
the  debt,  and  the  action  may  be  brought  against  all  of 
them  jointly,  or  against  one  or  more  of  them  severally.70 

He  is  entitled  to  recover  of  the  next  of  kin  the  value 
of  all  the  assets  received  by  all  the  defendants  in  the 
suit  if  necessary  for  the  payment  of  his  debt;  and  the 
amount  of  the  recovery  shall  be  apportioned  among 
the  defendants  in  proportion  to  the  value  of  the  assets 
received  by  each,  and  no  allowance  or  deduction  shall 
be  made  from  such  amount  on  account  of  there  being 
other  next  of  kin  to  whom  assets  have  also  been 
delivered.71 

The  liability  of  legatees  is  similar  except  that  a 
plaintiff  cannot  recover  unless  he  shows: 

1.  That  no  assets  were  delivered  by  the  executor  or 
administrator  of  the  testator  to  his  next  of  kin;  or, 

2.  That  the  value  of  such  assets  have  been  recovered 
by  some  other  creditor;  or, 

3.  That    such   assets    are   not   sufficient    to    satisfy 
his  demand,  in  which  case  he  shall  recover  only  the 
deficiency.72 

Costs  are  apportioned,  in  case  a  recovery  is  had, 
among  the  several  defendants  according  to  the  re- 
spective amount  each  received,73  and  a  decree  against 
several  may  be  satisfied  as  to  any  one  by  the  payment 
or  satisfaction  of  the  amount  recovered  against  him,74 
and  each  defendant  is  entitled  to  contribution  from 

69  The  Grange  Union  v.  Burkhart,  8  Or.  51. 

70  L.  O.  L.,  §§  485,  488. 

71  L.  O.  L.,  §  486. 

72  L.  O.  L.,  §  488. 

73  L.  O.  L.,  §  489. 

74  L.  O.  L.,  §  490. 

(343) 


§  228b  PROBATE    AND   ADMINISTRATION.  [Chap.  19 

those  of  his  class  who  could  have  been  brought  in  as 
defendants.75 

§  228b.    Liability  of  heirs  for  debts. 

Heirs  are  liable  to  a  suit  by  a  creditor  to  recover 
the  debt  of  their  ancestor  to  the  extent  of  the  value 
of  the  property  inherited  by  them  where  the  personal 
assets  were  insufficient  to  discharge  it,  or  after  due 
proceedings  the  creditor  has  been  unable  to  collect  the 
debt  from  the  creditors  of  the  deceased,  or  from  his 
next  of  kin  or  legatees.  All  heirs  must  be  made  par- 
ties to  the  suit.76 

An  action  may  be  brought  in  like  manner  against 
devisees,  and  they  are  held  liable  where  it  appears  that 
the  personal  assets  of  the  real  property  that  descended 
to  his  heirs  were  insufficient  to  discharge  the  debt,  or 
that  after  due  proceedings  the  creditor  has  been  unable 
to  recover  the  debt,  or  any  part  thereof,  from  the  per- 
sonal representatives  of  the  testator,  or  from  his  next 
of  kin,  legatees  or  heirs.  The  liability  is  limited  to 
the  amount  of  the  deficiency,  and  may  be  recovered  of 
the  devisees  of  the  testator  to  the  extent  of  the  value 
of  the  real  property  devised  to  them  respectively.77 

The  debts  for  which  actions  against  distributees, 
legatees,  heirs  or  devisees  may  be  maintained  include 
claims  for  the  payment  of  money,  whether  liquidated 
or  otherwise,  which  survive  against  a  personal  repre- 
sentative without  regard  to  priority  or  preference.78 
The  actions  do  not  affect  liability  of  real  estate  charged 
with  the  payment  of  debts,  or  liability  of  devisees  for 
a  debt  charged  on  the  devise.79 

75  L.  O.  L.,  §  487. 

76  L.  O.  L.,  §§  491,  492. 

77  L.  0.  L.,  §§  491,  498,  499. 

78  L.  O.  L.,  §  494. 

79  L.  O.  L.,  §§  493,  500. 

(344) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  229 

Judgment  is  rendered  against  the  heirs  or  devisees 
in  proportion  to  the  value  of  the  property  which  de- 
scended or  was  devised  to  them,  and  has  preference 
against  a  debt  of  the  defendant  in  his  own  right.  It 
may  be  enforced  by  execution  and  levy  on  the  land,  or 
on  other  property  of  the  defendant  in  case  the  land 
has  been  aliened,  as  if  it  were  his  own  debt.  Real 
property  aliened  in  good  faith  and  for  a  valuable  con- 
sideration cannot  be  held  for  the  judgment.80  There 
is  no  occasion  for  a  suit  for  contribution  between  heirs 
or  devisees,  for  their  liability  is  only  proportionate. 
It  is  rarely  necessary  to  resort  to  an  action  under  the 
above  law,  and  only  one  case  brought  under  it  has 
reached  the  Oregon  supreme  court. 

§  229.    Investment  of  assets. 

One  of  the  most  important  duties  devolving  upon  a 
personal  representative  is  the  investment  and  manage- 
ment of  the  assets  of  the  estate.  A  will  often  contains 
directions  to  the  executor  as  to  what  investments  shall 
be  made  of  the  personal  assets  pending  settlement  of 
the  estate,  and  it  is  his  duty  to  strictly  comply  with 
them.  An  administrator  is  subject  to  no  regulations 
or  restrictions  in  this  regard  except  those  of  the  gen- 
eral law.  Usually  he  has  but  a  comparatively  short, 
time  to  make  investments,  and  can  rarely  obtain  any 
better  than  the  rate  of  interest  paid  by  savings  banks 
on  deposits;  but  there  may  be  instances  where  assets 
remain  in  his  possession  for  two  or  three  years.  No 
personal  representative  should  permit  assets  to  be  un- 
remunerative  and  uninvested,  and,  when  practicable, 
should  invest  such  moneys  as  are  likely  to  remain  in 
his  possession  for  some  time,  so  that  they  will  be 

80  L.  O.  L.,  §§  495-497. 

(345) 


§  229  PROBATE    AND    ADMINISTRATION.  [Chap.  19 

adding  something  to  the  estate.81  In  making  such  in- 
vestments, a  personal  representative  should  be  guided 
by  the  same  degree  of  prudence  and  diligence  which 
men  usually  exercise  in  the  management  of  their  own 
individual  business.  If  possible,  moneys  should  be 
deposited  in  such  banks  as  pay  interest  on  deposits, 
even  though  it  be  a  low  rate.  That  form  of  investment 
which  is  looked  upon  with  the  most  favor  by  the  courts 
is  real  estate  mortgage  security  on  property  within 
this  state,  where  the  security  is  considerably  in  excess 
of  the  amount  loaned;  and  the  personal  representative 
should  be  more  particular  about  the  loan  being  a  safe 
one  than  the  rate  of  interest  being  large.82 

The  courts  make  a  distinction  between  the  loan  of 
the  funds  on  security  and  the  parting  of  title  to  them 
and  the  taking  of  something  else  therefor.  The  latter 
meBiod  of  investment  is  not  generally  considered  a 
proper  one  for  a  personal  representative  to  make  unless 
directed  by  the  will  or  the  court.83  Under  certain  cir- 
cumstances, state  or  municipal  bonds  might  be  a  desir- 
able investment  for  an  executor. 

Investment  of  the  funds  in  good  personal  securities, 
such  as  promissory  notes  indorsed  by  good,  reliable 
parties,  is  proper,  and  will  not  render  the  representa- 
tive personally  liable  should  they  subsequently  prove 
uncollectible.84  All  deposits  of  money  in  banks,  all 
loans  made  on  notes  and  mortgages,  and  all  bonds  or 
other  investment  securities  purchased,  should  be  held 

81  Wood  v.  Myrick,  17  Minn.  408. 

82  Wilson  v.  Staats,  33  N.  J.  Eq.  524;  Ormiston  v.  Olcott,  84  N.  Y. 
339. 

83  Horn  v.  Lockhart,  17  Wall.   (U.  S.)   570;  Tucker  v.  Tucker,  33 
N.  J.  Eq.  235. 

84  Lovell  v.  Minot,  20  Pick.  (Mass.)  119. 

(346) 


Chap.  19]  MANAGEMENT   OF   ESTATES.  §  230 

by  the  executor  or  administrator  in  his  representative 
capacity,  and  under  no  circumstances  should  he  mingle 
the  assets  of  the  estate  with  his  own.85 

Under  the  Oregon  practice,  the  executor  or  adminis- 
trator may  at  any  time  pending  administration  deposit 
securities  of  the  estate  with  a  surety  company,  an  order 
of  the  court  being  first  obtained  therefor,  and  thereby 
secure  a  reduction  in  the  penal  amount  of  his  bond, 
and  consequent  release  from  liability.  The  procedure 
is  the  same  as  in  the  case  of  procuring  a  bond  for  a 
reduced  amount  on  the  grant  of  letters.86  The  assets 
deposited  with  the  surety  company  are  still  under  con- 
trol of  the  county  court,  to  be  used  for  purposes  of 
administration.87 

§  230.    Liability  on  his  own  contracts. 

A  personal  representative  of  a  decedent  cannot  make 
any  contract  creating  any  debt,  charge  or  lien  against 
the  estate  not  founded  upon  a  contract  or  obligation 
of  his  decedent.  If  the  contract  is  based  on  a  new 
and  independent  consideration  between  him  and  the 
promisee,  he  will  be  bound  thereby  and  not  the  estate.88 
He  is  therefore  personally  liable  for  the  services  of 
those  whom  he  may  employ  to  assist  him  in  any  capa- 
city in  attending  to  his  duties,89  including  attorneys,90 

85  Williams  v.  Williams,  55  Wis.  300,  13  N.  W.  274;  Perkins'  Estate 
T.  Hollister,  59  Vt.  348,  7  Atl.  605;  Westover  v.  Carman,  49  Neb.  604, 
68  N.  W.  501. 

86  See  p.  152,  supra. 

87  Laws  1913,  p.  726. 

88  Craig  v.  Anderson,  3  Neb.  Unof.  638,  92  N.  W.  640;  Burleigh  v. 
Palmer,  74  Neb.  122,  103  N.  W.  1068;  Austin  v.  Monroe,  47  N.  Y.  360; 
Merchants'  Nat,  Bank  v.  Weeks,  53  Vt.  115. 

8»  Byrne  v.  Hume,  73  Mich.  392,  41  N.  W.  331;  Besancon  v.  Wegner, 
16  N.  D.  240,  112  N.  W.  965. 

W  Rapp's  Estate  v.  Elgutter,  77  Neb.  674,  110  N.  W.  661. 

(347) 


§  231  PROBATE    AND   ADMINISTRATION.  [Chap.  19 

bookkeepers,91  and  for  needed  repairs  on  buildings 
when  he  has  taken  possession  of  the  real  estate.92  If 
such  charges  were  for  services  for  the  benefit  of  the 
estate  and  were  necessary,  or  were  not  within  the  lino 
of  personal  duty  on  the  part  of  the  representative,  he 
can  be  later  reimbursed  from  the  estate. 

There  is  one  exception  to  the  rule  that  the  estate  is 
not  bound  by  contract  of  an  executor  or  administrator 
for  services.  Where  he  is  a  nonresident  of  the  state, 
though  letters  issued  to  him  in  this  state,  the  parties 
performing  the  services  may  bring  an  equitable  action 
to  establish  and  enforce  a  lien  on  the  assets  for  the 
amounts  due  them.93  New  York  has  also  held  that 
where  the  representative  is  insolvent,  judgment  on 
such  demands  may  be  entered  against  the  estate.94 

An  executor  or  administrator  cannot  be  held  liable 
on  a  promise  to  pay  the  debt  of  his  decedent  unless  the 
contract  therefor  be  in  writing  and  supported  by  a 
sufficient  consideration.95 

§  231.    Contracts  of  the  decedent. 

An  executor  is  required  to  carry  out  and  perform 
the  uncompleted  contracts  of  his  decedent  except  those 
which  required  his  personal  attention.96 

•1  Sowles  v.  Hall,  73  Vt.  53,  50  Atl.  550. 

92  Almy  v.  Newport  Probate  Court,  18  R.  I.  612,  30  Atl.  458;  Eice 
T.  Tilton,  14  Wyo.  101,  82  Pac.  577. 

»3  Gates  v.  McClenehan,  124  Iowa,  593,  100  N.  W.  479;  Coopwood  r. 
Wallace,  12  Ala.  790. 

94  Satorelli  v.  Ezagini,  64  Misc.  Rep.  115,  118  N.  Y.  Supp.  46. 

95  Davis  v.  French,  20  Me.  21;  Sidle  v.  Anderson,  45  Pa.  464;  Nelson 
v.  Boynton,  3  Met.  (Mass.)  396;  Simpson  v.  Patten,  4  Johns.  (N.  Y.) 
422;  Jackson  v.  Bayner,  12  Johns.  (N.  Y.)  291. 

96  Michigan  Iron  &  Land  Co.  v.  Nester,  147  Mich.  599,  111  N.  W. 
177;  Marvel  v.  Phillips,  162  Mass.  399,  38  N.  E.  1117. 

(348) 


Chap.  19]  MANAGEMENT   OF  ESTATES.  §  232 

Though  a  building  contract  is  largely  of  a  personal 
character,  it  has  been  held  that  a  personal  representa- 
tive may  complete  it.97  As  a  general  rule,  if  the  de- 
cedent was  a  contractor  ar;d  left  a  number  of  uncom- 
pleted works,  unless  otherwise  provided,  he  should  not 
attempt  to  finish  them,  but  settle  for  work  already  done 
and  materials  furnished. 

§  232.    Personal    representative    not    authorized    to 

carry  on  decedent's  business. 

An  administrator  cannot,  neither  can  an  executor, 
unless  specially  authorized  by  will,  continue  to  carry 
on  the  trade  or  business  of  his  decedent.  His  duty  is 
to  close  up  the  estate,  close  out  the  business,  reduce 
the  assets  to  money  as  soon  as  practicable,  and  not  to 
use  the  assets  in  the  business  ventures  in  which  the 
decedent  was  engaged  at  the  time  of  his  death.98  At 
the  same  time  it  is  not  necessary,  when  decedent  left, 
for  instance,  a  stock  of  merchandise,  that  the  store  be 
closed  at  once,  and  remain  so  until  a  purchaser  for 
the  entire  stock  can  be  found.  The  executor  or  ad- 
ministrator, or  a  special  administrator,  should  at  once 
obtain  leave  of  the  court  to  sell  as  in  the  usual  course 
of  retail  trade,  or  such  other  way  as  may  be  deemed 
best;  and  for  the  purpose  of  winding  up  the  business 
and  rendering  the  stock  more  salable,  he  has  a  right 
to  purchase  goods  in  such  limited  quantities  as  might 
increase  the  demand  for,  and  make  more  salable,  the 
rest  of  the  stock.99  He  would  also  have  authority  to 

»7  Bambrick  v.  Webster  Grove  Pres.  Church,  53  Mo.  App.  225. 
88  Lucht   v.   Eehrens,   28   Ohio   St.   231;    Succession   of   Sparrow,  39 
La.  Ann.  696,  2  South.  501;  Stephens  v.  James,  77  Ga.  139,  3  S.  E.  160. 
w  \Nilliams,  Executors,  1794. 

(349) 


§  233  PBOBATE    AND   ADMINISTRATION.  [Chap.  19 

bind  the  estate  to  the  payment  of  such  expenses  as  may 
be  necessary  for  the  cultivating  and  harvesting  a  crop 
growing  at  the  time  of  decedent's  death.100 

If  decedent  was  a  contractor,  and  left  a  number  of 
uncompleted  contracts  at  the  time  of  his  death,  unless 
otherwise  provided  in  the  contract,  the  personal  repre- 
sentative should  settle  up  for  work  already  performed. 
A  contract  of  this  class  depends  much  upon  the  per- 
sonal ability  and  knowledge  of  the  contractor,  and  to 
permit  an  executor  or  administrator  to  carry  it  out 
might  be  a  disastrous  venture  for  the  estate. 

§  233.  Liability  for  carrying  on  decedent's  business. 
Should  a  personal  representative,  in  spite  of  legal 
authority,  carry  on  decedent's  trade  or  business,  the 
obligations  which  he  incurs  are  his  own  debts, — the 
estate  is  not  holden  thereby.101  He  is  liable  to  the 
estate  for  the  value  of  the  assets  so  used,  and  must 
account  for  the  rental  value  of  the  real  property  should 
he  have  used  that  in  the  business.  If,  by  the  will,  he 
be  directed  or  authorized  to  carry  on  decedent's  busi- 
ness, unless  otherwise  directed,  he  can  only  use  in  the 
business  those  assets  invested  therein  at  the  date  of 
decedent's  death.  He  cannot  use  other  assets  for  that 
purpose,  and  all  parties  dealing  with  him  do  so  with 
the  knowledge  that  he  is  managing  and  conducting 
the  business  as  such  executor,  and  under  the  provisions 

100  Miltenberger  v.  Elam,  11  La.  Ann.  668;   Succession  of  Decuir, 
22  La.  Ann.  372;  Florsheim  v.  Holt,  32  La.  Ann.  133. 

101  Succession  of  Sparrow,  39  La.  Ann.  696,  2  South.  501;  Hooper  v. 
Hooper's  Exrs.,   29  W.   Va.   276,   1   S.   E.   280;   Burwell   v.   Cawood,   2 
How.  (U.  S.)  560;  Lucht  v.  Behrens,  28  Ohio  St.  231. 

(350) 


Chap.  19]  MANAGEMENT  OF  ESTATES.  §  234 

of  the  will,102  and  therefore  only  such  portion  of  the 
assets  of  the  estate  as  were  invested  therein  at  the 
time  of  decedent's  death,  and  the  proceeds  of  sales  or 
income  from  such  assets,  are  subject  to  the  debts  in- 
curred by  him  in  the  business.103 

§  234.    Devastavit — Definition. 

A  devastavit  may  be  denned  as  a  wasting  of  the  as- 
sets of  the  estate,  and  consists  of  any  act  of  omission 
or  mismanagement  by  which  the  estate  suffers  loss, 
and  for  which  executors  and  administrators  are  re- 
quired to  answer  out  of  their  own  property  as  far  as 
they  had  or  might  have  had  assets  of  the  estate.104  It 
may  be  caused  by  direct  acts,  such  as  the  conversion 
of  the  assets,  or  by  negligence,  carelessness,  and  in- 
attention to  the  business  of  the  estate.  In  determin- 
ing whether  a  personal  representative  is  to  be  held 
liable  for  a  devastavit,  the  question  of  good  faith  is 
an  important  element  to  be  considered.  If  he  has 
acted  without  default  or  fraud,  with  reasonable  dili- 
gence, and  with  an  honest  desire  to  do  his  duty  faith- 
fully, a  mere  error  of  judgment  in  what  was  fairly  a 
matter  of  judgment  or  opinion  would  not  make  him 
liable  merely  because  subsequent  events  have  shown 
that  he  did  not  pursue  the  wisest  course.105  He  is  also 

102  First  Nat.  Bank  of  Clarion  v.  Brenneman's  Exrs.,  114  Pa.  315, 
7  Atl.  910. 

103  Jones  v.  Walker,  103  U.  S.  444. 

104  Bacon's  Abr.   "Executors,"  L.   1;   Steel   v.  Holladay,  20  Or.   77, 
25  Pac.  69. 

105  Schultz  v.  Pulver,  11  Wend.  (N.  Y.)   361;  Euggles  v.  Sherman, 
14  Johns.  (X.  Y.)  446;  Whitney  v.  Peddicord,  63  111.  249;  Spaulding 
v.  Wakefield's  Estate,  53  Vt.  660. 

(351) 


§  235  PROBATE    AND    ADMINISTRATION.  [Chap.  19 

required  to  exercise  such  skill,  prudence  and  diligence 
as  men  ordinarily  bestow  upon  their  own  affairs.106 

§  235.    Acts  constituting  a  devastavit. 

The  following  acts  have  been  held  to  constitute  a 
devastavit:  Loss  occurring  by  reason  of  neglect  to 
collect  the  debts  within  a  reasonable  time  after  the 
issue  of  letters;107  by  failure  to  obey  the  directions  of 
a  will;108  by  the  use  of  the  assets  in  the  "prosecution 
of  mercantile,  commercial  and  manufacturing  enter- 
prises of  speculative  adventures";109  by  borrowing 
money,  and  pledging  the  property  of  the  estate  in 
payment;110  by  failure  to  account  for  the  rent  of  the 
realty;111  by  failure  to  pay  taxes,  there  being  sufficient 
assets  of  the  estate  in  his  hands  for  that  purpose;112 
by  paying  the  assets  of  the  estate  in  satisfaction  of  his 
own  debts,  or  to  a  third  party;113  by  a  loss  of  personal 
property  through  his  carelessness  and  negligence;114 
by  failure  to  resist  unjust  and  unfounded  claims;115  by 
mingling  the  property  of  the  estate  with  his  own,  as 
by  depositing  the  money  in  a  bank  in  his  own  name,  or 

106  Stevens  v.  Gage,  55  N.  H.  175;  Rubottom  v.  Morrow,  24  Ind. 
202;  Harris  v.  Parker,  41  Ala.  604. 

107  Schultz  v.  Pulver,  11  Wend.  (N.  Y.)   363;  Shaffer's  Appeal,  46 
Pa.  131;  Sterling  v.  Wilkinson,  83  Va.  791,  3  S.  E.  533;  Neff's  Appeal, 
48  Pa.  501;  Bryant  v.  Kussell,  23  Pick.  (Mass.)  508. 

108  Weigand's  Appeal,  28  Pa.  471. 

109  Deobold  v.   Oppermann,   111  N.  Y.  538,  19  N.  E.  94;   King  v. 
Talbot,  40  N.  Y.  86. 

no  Merchants'  Nat.  Bank  v.  Weeks,  53  Vt.  115. 
Hi  Dix  v.  Morris,  66  Mo.  514. 

112  In  re  Herteman's  Estate,  73  Cal.  545,  15  Pac.  121. 

113  Camp  v.  Smith,  68   N.  C.  537. 

114  Tuttle  v.  Robinson,  33  N.  H.  104. 

115  Smith  v.  Cuyler,  78  Ga.  654,  3  S.  E.  406. 

(352) 


Cliap.  19]  MANAGEMENT   OF  ESTATES.  §  236 

with  his  own  funds;116  by  failing  to  redeem  property 
when  he  had  money  on  hand  sufficient  to  do  so;117  by 
selling  the  assets  on  credit,  and  without  security;118 
and  by  using  the  assets  of  the  estate  in  trade.119  He 
is  not  held  liable  for  failure  to  try  to  enforce  bad  or 
doubtful  claims,  provided  he  can  show  that  payment 
could  not  have  been  obtained  by  proper  measures;120- 
nor  for  loss  accruing  by  reason  of  the  extension  of  a 
debt,  made  with  the  consent  of  the  distributees;121  nor 
is  he  liable  for  property  lost  by  robbery,  fire  or  flood, 
unless  his  own  negligence  or  bad  faith  contributed 
thereto.122 

§  236.    Rights  in  regard  to  negotiable  instruments. 

If  an  executor  or  administrator  takes  a  note  in  set- 
tlement of  a  claim  owing  the  estate,  payable  to  him 
in  his  representative  capacity,  he  may  treat  it  as  as- 
sets of  the  estate,  or  he  may  charge  himself  with  the 
amount  thereof,  thereby  making  himself  personally  lia- 
ble, and  hold  the  paper  as  his  own  private  property.123 

lie  Williams  v.  Williams,  55  Wis.  300;  Kobinett's  Appeal,  36  Pa. 
174;  Gilbert's  Appeal,  78  Pa.  266;  Perkins'  Estate  v.  Hollister,  59 
Vt.  348,  7  Atl.  605;  Ditmar's  Admr.  v.  Bogle's  Distributees,  53  Ala. 
169. 

117  Steel  v.  Holladay,  20  Or.  77,  25  Pac.  69. 

us  King  v.  King,  3  Johns.  Ch.  (N.  Y.)  552;  Orcutt  v.  Orms,  3  Paige 
<N.  Y.),  464. 

119  Cases  cited  in  section  supra. 

120  Miller's  Exr.   v.   Simpson,   8   Ky.  Law   Eep.   518,   2   S.   W.   171; 
Turbeville  v.  Flowers,  27  S.  C.  331,  3   S.  E.  542;   Sanborn  v.   Good- 
hue,  28  N.  H.  48. 

121  Perry  v.  Wooton,  5  Humph.  (Tenn.)  524. 

122  Foster  v.  Davis,  46  Mo.  268;  Xeff's  Appeal,  57  Pa.  91;  Stevens 
v.  Gage,  55  N.  H.  175;  Cooper  v.  Williams,  109  Ind.  270,  9  N.  E.  917. 

123  Fry  v.  Evans,  8  Wend.  (N.  Y.)  530;  Sheets  V.  Pabody,  6  Blackf. 
(Ind.)  120;  Dunlap  v.  Newman,  47  Ala.  429. 

23— Pro.  Ad.  (353) 


§  236  PEOBATE    AND   ADMINISTRATION.  [Chap    19 

In  the  first  instance,  upon  the  death  or  resignation  of 
the  representative,  the  paper  passes  to  the  administra- 
tor de  bonis  non,  and  he  alone  can  bring  suit  thereon.124 
In  the  latter,  the  right  of  action  would  pass  to  his  per- 
sonal representatives,125  the  amount  of  the  note  being 
treated  as  the  indebtedness  of  the  late  personal  repre- 
sentative to  the  estate  of  his  decedent. 

Whenever  he  sells  or  assigns  a  negotiable  note, 
whether  payable  to  himself  as  representative  or  to  his 
decedent,  the  transfer  must  be  made  by  his  own  in- 
dorsement,126 and  such  indorsement  binds  him  person- 
ally unless  he  expressly  exempts  himself  from  such 
liability,  should  payment  be  refused  by  the  maker  or 
prior  indorser.127 

A  note  payable  to  a  personal  representative,  and 
once  treated  by  him  as  assets,  cannot  be  transferred 
by  him,  and,  where  he  attempts  to  do  this,  the  notes 
and  bills  thus  illegally  disposed  of  can  be  recovered 
of  any  indorser  who  takes  them  with  notice  of  the 
fraud.128  Proof  of  actual  notice  brought  home  to  the 
indorsee  is  not  held  necessary;  he  is  charged  with 
knowledge  of  the  trust  by  the  fact  that  the  instruments 
are  made  payable  to  the  representative  as  such.129  He 
cannot  bind  the  estate  of  his  decedent  by  any  nego- 

124  Leach  v.  Lewis,  38  Ind.  160;  Sheets  v.  Pabody,  6  Blackf.  (Ind.) 
120. 

125  Cravens  v.  Logan,  7  Ark.  103;  Hemphill  v.  Hamilton,  11  Ark. 
425. 

126  Gaboon  v.  Moore,  11  Vt.  604;  Makepeace  v.  Moore,  10  111.  474; 
Hamrick  v.  Craven,  39  Ind.  241;  Clark  v.  Moses,  50  Ala.  326. 

127  Forster  v.  Fuller,  6  Mass.  58. 

128  Booyer  v.  Hodges,  45  Miss.  78;  Makepeace  v.  Moore,  10  111.  474; 
Miller  v.  Williamson,  5  Md.  219. 

129  Booyer  T.  Hodges,  45  Miss.  78;  Miller  v.  Williamson,  5  Md.  219. 

(354) 


Chap.  19]  MANAGEMENT   OF   ESTATES.  §  236 

liable  instrument  which  he  may  execute  in  his  repre- 
sentative capacity,  except  notes  secured  by  mortgage 
upon  the  decedent's  realty,  executed  pursuant  to  au- 
thority granted  by  the  county  court,130  even  though  it 
is  a  note  given  in  renewal  of  testator's  or  intestate's 
note.131  He  may,  however,  limit  his  obligation  to  the 
extent  of  the  funds  of  the  estate  in  his  hands,  or  make 
it  payable  out  of  the  assets.  His  liability  would  then 
be  limited  by  the  appropriation  of  such  funds  for  the 
payment  of  the  debt,  but  this  would  deprive  the  note 
of  its  negotiable  character.132 

130  Section    249,   post;   Rev.   Stats.,   c.   17,    §  227,    [1491] ;    Curtis   v. 
Farmers'  Xat.  Bank,  39  Ohio  St.  579;  Christian  v.  Morris,  50  Ala.  585; 
Lynch  v.  Kirby,  65  Ga.  279. 

131  Cornthwraite  v.  First  Nat.  Bank  of  Rockville,  57  Ind.  268. 

132  Kelly  v.  Bronson,  26  Minn.  359,  4  N.  W.  607. 

(355) 


CHAPTER  XX. 

PARTNERSHIP. 

§  237.     Dissolution    of   Partnership   by   Death — Eights    of    Surviving 
Partner. 

238.  Duty  of  Surviving  Partner. 
238a.  Administrator  of  a  Partnership. 

238b.  Power  of  Administrator  of  a  Partnership. 

239.  Settlement   Between   Personal   Kepresentative   and   Surviving 

Partner. 

240.  Partnership  Real  Estate. 

241.  Settlement  With  Special  Administrator. 

242.  Account  of  Special  Administrator. 

243.  Sale  of  Interest  of  Estate  in  Partnership  Property. 

244.  Notice — Hearing. 

§  237.    Dissolution  of  partnership  by  death — Rights 
of  surviving  partner. 

A  partnership  terminates  .with  the  death  of  one  of 
its  members,1  and,  in  the  absence  of  authority  given 
by  the  articles  of  copartnership  and  the  will  of  the 
late  partner,  the  survivors  have  no  authority  to  incur 
debts  binding  upon  the  estate  in  continuing  the  busi- 
ness.2 

The  executor  or  administrator  does  not  succeed  to 
the  interests  of  his  decedent  in  the  assets  of  the  firm, 
and  has  not  an  immediate  right  to  their  possession. 
The  partnership  property  vests  in  the  surviving  part- 
ner or  partners,  in  trust,  for  the  settlement  and  wind- 
ing up  of  the  business.3  He  takes  such  property  for 

1  Jenness  v.  Carlton,  40  Mich.  343;  Filley  v.  Phelps,  18  Conn.  294. 

2  Lucht  v.  Behrens,  28  Ohio  St.  231;  In  re  Woods'  Estate,  1  Pa.  368; 
Me  Kean  v.  Vick,  108  111.  373. 

3  Clark   v.   Fleischman,    81   Neb.   455,    116   N.   W.   290;    Lindner   v. 
Adams  County  Bank,  49  Neb.  735,  68  N.  W.   1028;   Banks  v.  Steele, 

(356) 


Chap.  20]  PARTNERSHIP.  §  238 

the  use  and  benefit  of  all  persons  interested  in  the 
estate — the  heirs,  legatees,  devisees  and  creditors — as 
well  as  the  creditors  of  the  firm;  but  the  creditors  of 
the  late  partnership  have  no  lien  on  the  partnership 
assets,  nor  are  such  assets  held  by  the  survivor  in  trust 
for  the  payment  of  partnership  debts.4 

§  238.    Duty  of  surviving  partner. 

It  is  the  duty  of  the  surviving  partner  to  collect  the 
debts  due  the  firm  and  receipt  for  the  same,  pay  out- 
standing accounts,  and  wind  up  the  business  as  soon 
as  the  circumstances  will  permit.5  In  order  to  do  this 
he  lias  power  to  sell  -and  transfer  the  assets  of  the  part- 
nership, including  choses  in  action,  and,  in  the  absence 
of  fraud,  the  purchaser  acquires  a  good  title.6  He  has 
substantially  the  same  powers  as  the  firm  had  during 
its  existence  in  so  far  as  the  disposition  of  the  assets 
is  concerned.7 

Partnership  debts  are  payable  from  partnership 
assets.8  After  they  are  paid  the  executor  or  admin- 
istrator becomes  entitled  to  the  share  of  the  deceased 
partner  in  the  balance  remaining. 

27  Neb.  138,  42  N.  W.  883;  Brown  v.  Watson,  66  Mich.  223,  33  N.  W. 
493;  Bush  v.  Clark,  127  Mass.  Ill;  Oram  v.  Kothermel,  98  Pa.  300. 

4  Fairbanks,  Morse  &  Co.  v.  Welshans,  55  Neb.  362,  75  N.  W.  865. 

5  Heath  v.  Waters,  40  Mich.  457;  Stearns  v.  Houghton,  38  Vt.  453; 
Heartt  v.  Walsh,  75  111.  200;  Hodgkins  v.  Merritt,  53  Me.  208. 

6  Lindner  v.  Adams  County  Bank,  49  Neb.  735,  68  N.  W.  1028;  Fitz- 
patrick  v.  Flannagan,  106  U.  S.  648,  1  Sup.  Ct.  Rep.  369;  Johnson  v. 
Berlizhcimer,    84   111.   54. 

1  Bartlett  v.  Smith,  5  Neb.  Unof.  337,  98  N.  W.  687. 
8  Banks  v.  Steele,  27  Neb.  138,  42  N.  W.  883;  Wright  v.  Barton,  34 
Neb.  776,  52   N.  W.   809. 

(357) 


§  238a  PROBATE    AND   ADMINISTRATION.  [Cliap.  20 

§  238a.    Administrator  of  a  partnership. 

Under  the  Oregon  statutes  a  surviving  partner  to 
whom  letters  testamentary  or  of  administration  have 
been  granted  also  takes  charge  of  the  interest  of  the 
estate  in  the  partnership  property,  and,  under  the  con- 
trol of  the  county  court,  including  the  settlement  of 
the  interest  of  the  estate  therein.  If  a  third  party  is 
appointed,  the  surviving  partner  is  entitled  to  the  con- 
trol and  right  of  disposition  of  the  partnership  in- 
terest, if  he  applies  for  the  same  within  five  days  from 
the  date  of  the  filing  of  the  inventory,  or  within  such 
further  time  as  the  court  or  a  judge  thereof  may  allow, 
and  possesses  the  qualifications  and  competency  of  a 
general  administrator.9 

The  person  who  administers  the  partnership  assets 
is  denominated  the  administrator  of  a  partnership. 
Before  entering  upon  his  duties  he  is  required  to  give 
a  bond  conditioned,  the  same  as  that  of  a  general 
administrator,  in  double  the  amount  of  the  partnership 
property.10  His  duties,  though  he  may  be  also  the 
executor  or  administrator  of  the  estate,  are  entirely 
separate  and  distinct  from  those  pertaining  to  the  ad- 
ministration of  the  residue  of  the  estate.  The  giving 
of  the  statutory  undertaking  is  imperative,  and  a  tes- 
tator has  no  power  to  release  him  from  the  same.11 
The  powers  possessed  by  the  administrator  of  a  part- 
nership are  not  as  broad  as  those  of  a  surviving  part- 
ner at  common  law.  In  their  exercise,  and  in  the 
performance  of  his  duties,  he  is  subject  to  the  same 
limitations  and  liabilities,  and  control  and  jurisdic- 
tion of  the  court,  as  a  general  administrator.12 

The  court  has  the  same  supervisory  control  over  his 
acts  as  over  those  of  a  general  administrator.  He 

»  L.  O.  L.,  §  1167. 

10  L.  O.  L.,  §§  1168,  1169. 

11  Palacio  v.  Bigne,  15  Or.  142,  13  Pac.  765. 

12  L.  O.  L.,  §  1168. 

(358) 


Chap.  20]  PARTNERSHIP.  §  238b 

may  be  removed  for  the  same  causes  and  in  the  same 
manner.13  In  the  case  of  his  removal  the  power  of  the 
court  to  appoint  a  third  party  his  successor  is  im- 
pliedly  recognized  by  the  cases  above  cited.  It  is  the 
duty  of  such  successor  to  obtain  an  order  of  the  court 
therefor  and  bring  an  action  to  set  aside  as  fraudu- 
lent any  sale  or  transfer  of  the  partnership  property 
with  intent  to  defraud  the  creditors  of  the  estate.14 

§  238b.    Powers  of  administrator  of  a  partnership. 

The  powers  of  the  county  court  over  the  interests 
of  a  decedent  in  a  partnership  do  not  include  a  settle- 
ment of  matters  in  dispute  in  regard  to  the  extent  of 
the  interest  of  the  decedent  in  the  property,  the  adjust- 
ment of  mutual  accounts  between  partners,  or  such 
matters  as  generally  arise  in  actions  for  the  dissolu- 
tion of  a  partnership,  or  partition  of  partnership  real 
estate  involving  the  title  to  the  property.15  The  part- 
nership administrator  has  power  to  collect  the  debts 
due  the  partnership  and  pay  the  demands  against  it, 
and  to  raise  money  for  such  purpose  may  obtain  a 
license  for  the  sale  of  the  interest  of  the  estate  in  part- 
nership property.16 

Such  powers  are  not  exclusive.  Letters  of  adminis- 
tration of  the  partnership  do  not  take  away  the  rights 
which  a  surviving  partner  had  at  common  law  to  collect 
money  and  pay  the  debts  and  necessary  expenses  in- 
cidental to  the  closing  out  of  the  business,  nor  the 
rights  of  a  creditor  to  the  remedies  granted  him  at 

13  In  re  Mark's  Estate,  66  Or.  344,  133  Pac.  777;  In  re  Manser's 
Estate,  62  Or.  249,  118  Pac.  1024. 

n  Marks  v.  Coats,  37  Or.  611,  62  Pac.  488;  In  re  Mark's  Estate, 
66  Or.  344,  133  Pac.  777;  In  re  Mark's  &  Wallenberg's  Estate,  66  Or. 
306,  133  Pac.  779. 

15  Gardner  v.  Gillihan,  20  Or.  598,  27  Pac.  220;  Harrington  v.  Jones, 
53  Or.  239,  90  Pac.  935;  Dray  v.  Bloch,  29  Or.  347,  45  Pac.  772;  In  re 
Bolander's  Estate,  38  Or.  490,  63  Pac.  689. 

i«  BurnBide  T.  Savier,  6  Or.  156. 

(359) 


,§  238b  PROBATE    AND    ADMINISTRATION.  [Chap.  20 

•common  law  for  the  enforcement  of  his  demands 
•against  the  partnership.17 

Every  surviving  partner,  on  the  demand  of  the  ex- 
ecutor or  administrator  of  a  deceased  partner,  is  re- 
quired to  give  him  all  the  information  concerning  the 
property  of  a  deceased  partner  at  the  time  of  his  death, 
so  that  the  same  can  be  correctly  inventoried,  and  if 
the  entire  administration  devolve  on  the  executor  or 
administrator,  deliver  or  transfer  to  him  on  demand 
all  the  property  of  the  partnership,  including  books, 
papers  and  documents  pertaining  to  the  same,  and 
afford  him  reasonable  information  and  facilities  for 
performing  the  duties  of  his  trust,18  and  for  failure  to 
comply  with  the  above  requirements,  may  be  cited  be- 
fore the  court  or  judge  and  required  to  furnish  the 
information  or  otherwise  comply  with  the  law.19 

The  administrator  of  the  partnership  should  settle 
the  business  of  the  partnership  and  turn  over  to  the 
general  representative  the  interest  of  the  deceased  in 
the  property  within  six  months  from  the  date  of  his 
appointment,  unless  further  time  is  granted  him  by 
the  court,  should  it  be  necessary.20  The  amount  re- 
ceived from  the  partnership  must  be  accounted  for  in 
the  final  account,  so  that  the  partnership  estate  must 
be  closed  up  before  the  individual  estate.21 

Statutes  like  those  of  Oregon  providing  for  admin- 
istration of  partnerships  do  not  afford  a  remedy  where 
there  is  any  disputed  question  over  the  shares  of  the 
partners,  or  their  mutual  accounts;  in  such  cases  an 
action  in  equity  is  necessary. 

17  Poppleton  v.  Jones,  42  Or.  26,  69  Pac.  919. 

18  L.  O.  L.,  §  1171. 
l»  L.  O.  L.,  §  1172. 

20  L.  O.  L.,  §  1168. 

21  Palacio  v.  Bigne,  15  Or.  142,  13  Pac.  765. 

(360) 


Chap.  20]  .    PARTNERSHIP.  §  239 

§  239.    Settlement   between   personal   representative 
and  surviving  partner. 

At  any  time  after  the  issue  of  letters  to  him,  an 
executor  or  administrator  has  authority  to  settle  with 
the  surviving  partner  all  the  dealings  and  transactions 
of  the  partnership,  as  well  as  those  remaining  unset- 
tled before  the  death  of  the  deceased  partner  as  of  the 
said  parties  thereafter,  and  shall  present  to  the  county 
court  appointing  him  a  full  statement  of  the  matter 
and  manner  of  such  settlement,  and,  upon  due  notice 
to  all  parties  interested,  said  court  shall  examine,  re- 
view, correct,  approve  or  disallow  such  settlement.22 
Under  this  statute  he  has  power,  subject,  of  course, 
to  confirmation  by  the  court,  to  fix  the  value  of  the 
interest  of  his  decedent,  by  determining  the  amount  of 
the  assets  and  liabilities,  including  amounts  owing  to 
or  due  from  his  decedent  and  other  partners  to  the 
firm.  He  may  sell  the  interest  of  his  decedent  for  a 
lump  sum,  including  the  goodwill,  which  is  always  a 
proper  asset,23  or  after  the  surviving  partner  has  dis- 
posed of  the  assets  of  the  firm  and  paid  the  debts,  he 
may  make  a  report  of  the  same  showing  the  interest , 
of  his  decedent  in  the  balance. 

If  the  assets  of  the  partnership  are  not  sufficient  to 
pay  its  debts,  the  estate  of  the  decedent  is  liable  for 
its  share  of  the  deficiency.  In  such  case  the  creditors 
may  file  claims  against  the  estate  for  the  balance  due . 
them,24  or  the  surviving  partner  may  pay  it  and  file 
a  claim  for  its  payment.25 

22  Rev.   Stats.,   c.   17,   §  116,    [1380]. 

23  Lobeck  v.  Lee-Clark-Andreesen  Co.,  37  Neb.  158,  55  N.  W.  650. 

24  Van  Kleeck  v.  McCabe,  87  Mich.  599,  49  N.  W.  872. 
»  Goldthwait  v.  Day,  149  Mass.  185.  21  N.  E.  359. 

(361) 


§  240  PROBATE    AND    ADMINISTRATION.  [Chap.  20 

The  settlement  may  be  a  partial  one,  including  only 
personal  property. 

In  the  absence  of  an  agreement  to  the  contrary,  the 
surviving  partner  is  entitled  to  no  compensation  for 
winding  up  the  firm  business.26 

The  executor  or  administrator  may  compel  a  sur- 
viving partner  or  partners  to  account  for  partnership 
affairs  by  a  bill  in  equity,  he  standing  on  the  same 
footing  in  this  respect  as  his  decedent.27 

§  240.    Partnership  real  estate. 

The  title  to  the  share  of  a  deceased  partner  in  part- 
nership real  estate  passes  to  his  devisees  or  heirs,  as 
tenants  in  common  with  the  surviving  partners,  sub- 
ject to  partnership  debts.  The  right  to  the  possession 
vests  in  the  survivor  or  survivors,  he  or  they  holding 
it  in  trust  for  all  parties  interested,  the  same  as  if  it 
were  personalty.28 

Where  it  appears  to  be  necessary  in  order  to  pay 
the  debts  of  the  late  firm,  it  has  been  held  that  the 
duty  of  a  surviving  partner  to  close  up  the  business  of 
the  firm  gives  him  the  right  without  first  obtaining 
a  license  from  a  court  to  sell  the  real  estate  of  the 
partnership,  accounting  to  the  personal  representative 
for  the  interest  of  the  estate  in  the  proceeds.29  Other 

20  Loomis  v.  Armstrong,  49  Mich.  521,  14  N.  W.  505;  Tillotson  v. 
Tillotson,  34  Conn.  335;  Appeal  of  Shriver  (Pa.),  12  Atl.  553;  Little 
vi  Caldwell,  101  Cal.  553,  36  Pac.  107;  Porter  v.  Long,  124  Mich.  584, 
83  N.  W.  601. 

27  Bundy  v.  Youmans,  44  Mich.  376,  6  N.  W.   851;   Goldthwait  v. 
Day,  149  Mass.  185,  21  N.  E.  359;  Jennings'  Admrs.  v.  Chandler,  10 
Wis.  21;  Pitt  v.  Moore,  99  N.  C.  85. 

28  Merrit  v.  Dickey,  38  Mich.  41. 

29  Easton  r.  Courtright,  84  Mo.  28;  Shanks  T.  Kline,  104  U.  S.  18. 

(362) 


Chap.  20]  PARTNERSHIP.  §  240 

cases  hold  that  he  only  conveys  an  equitable  title,30 
and  in  such  cases  should  bring  an  action  to  subject  it 
to  the  debts.31  This  would  seem  a  safer  rule. 

The  personal  property  should  always  be  exhausted 
before  resorting  to  the  real  estate.32 

Form  No.  103. 

REPORT  OF  SETTLEMENT  OF  PARTNERSHIP  INTERESTS. 
[Title  of  Cause  and  Court.] 

I,  L.  M.,  administrator  of  said  estate,  would  respectfully  report 
that  I  have  made  a  settlement  with  G.  H.,  surviving  partner  of  said 
A.  B.,  of  all  the  dealings  and  transactions  of  said  partnership  of  A.  B. 
&  G.  H.  (save  and  except  the  division  of  the  real  estate  of  said  firm) 
and  herewith  submit  my  report  thereof  as  follows: 

On  the  day  of  ,  19 — ,  I,  together  with  G.  H.,  made 

an  inventory  of  all  the  assets  belonging  to  said  partnership,  a  copy 
of  which  is  hereto  attached,  marked  "Exhibit  A";  that  the  books 
of  account  of  said  firm  disclose  that  the  indebtedness  of  said  firm 

was  the   sum  of  dollars,  and  that   there  was  due   and   owing 

said  firm  the  sum  of  dollars,  of  which  said  amounts  due  and 

owing  the  collectible  accounts  amount  to  the  sum  of  dollars, 

making  the  net  assets  of  said  firm,  over  and  above  all  liabilities,  as 

appears  from  the  books  and  inventory,  the  sum  of dollars;  that 

the  said  G.  H.,  surviving  partner,  then  proceeded  to  close  out  said 
partnership  by  selling  the  goods,  wares  and  merchandise  at  private 
sale,  paying  the  debts  thereof,  and  collecting  the  notes  and  accounts 
due  said  firm;  that  hereto  attached,  marked  "Exhibit  B,"  is  a  state- 
ment taken  from  the  books  of  account  of  said  surviving  partner  of 
the  sales  of  merchandise,  debts  and  expenses  paid,  and  outstanding 
accounts  due,  collected  by  him,  and  that  all  the  goods  and  stock  and 
fixtures  belonging  to  said  late  firm  have  been  sold,  and  that  the  net 
cash  assets  of  said  firm  are  the  sum  of  dollars. 

On  the  day  of  ,  19 — ,  said  G.  H.,  paid  to  me,  subject 

to  the  approval  by  the  court  of  this  account,  the  sum  of  dol- 
lars, the  one-half  of  the  cash  assets  of  said  firm,  and  the  amount  of 
the  interest  of  the  estate  of  said  A.  B.  therein. 

30  Walling  v.  Burgess,  122  Ind.  299,  22  N.  E.  219. 

31  Dyer  v.  Clark,  5  Met.  (Mass.)  562. 

32  Foster's  Appeal,   74  Pa.   391. 

(363) 


§  241  PROBATE  AND  ADMINISTRATION.         [Chap.  20 

Said  administrator  therefore  prays  that  said  court  fix  a  time  and 
place  for  hearing  on  said  report  and  cause  notice  thereof  to  be  given 
to  all  persons  interested  therein  as  the  court  may  direct,  and  that 
on  said  hearing  said  report  be  approved. 

Dated  this day  of ,  19 — , 

(Signed)     L.  M. 

§  241.    Settlement  with  special  administrator. 

The  laws  of  Nebraska  do  not  permit  an  executor  or 
administrator,  who  is  also  surviving  partner  of  his  de- 
cedent, to  settle  the  partnership  interests  with  him- 
self, or  make  a  sale  of  them.  In  such  cases  the  county 
court  which  issued  letters  to  such  representative  shall 
appoint  a  special  administrator  to  discharge  the  duties 
of  a  personal  representative  in  connection  with  the 
partnership  matters  only.  The  appointment  is  made 
upon  the  same  proceedings  as  are  provided  by  law  for 
the  appointment  of  special  administrators  where  there 
is  a  delay  in  the  issue  of  letters.33 

The  executor  or  administrator  holds  the  partnership 
property  as  a  surviving  partner,  liable  as  a  personal 
representative  for  the  interest  of  his  decedent  therein, 
until  after  the  approval  of  his  settlement  with  the 
special  administrator,  when  his  liability  becomes  the 
same  as  in  other  cases.34 

If  a  surviving  partner  or  partners  continue  to  use 
the  decedent's  share  in  the  business,  they  and  other 
parties  associated  with  them  are  liable  to  the  bene- 
ficiaries of  the  estate  for  all  such  property,  the  remedy 
being  a  bill  in  equity  for  an  accounting,35  and  the  court 

S3  Kev.  Stats.,  c.  17,  §  117,  [1381] 

84  Grant  v.  Kinney,  36  Tex.  62. 

85  Rowell  v.  Eowell,  122  Wis.  1,  99  N.  W.  473. 

(364) 


Chap.  20]  PARTNERSHIP.  §  241 

will  hold  the  offending  representative  to  a  strict  ac- 
count of  firm  assets  and  rents  and  profits  made  or 
which  should  have  been  made  by  judicious  manage- 
ment, or  it  may  require  him  to  account  for  the  amount 
invested  by  the  decedent  with  interest.36 

Form  No.  104. 

PETITION  FOR  APPOINTMENT  OF  SPECIAL  ADMINISTRATOR 
TO  ADMINISTER  PARTNERSHIP  ASSETS. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  G.  H.,  respectfully  represents  unto  the  court  that 

on   the  day   of  ,   19 — ,   letters   testamentary   upon   said 

estate  were  issued  out  of  and  under  the  seal  of  said  court  to  C.  D., 
and  that  said  C.  D.  is  now,  and  ever  since  said  date  has  been,  ex- 
ecutor of  said  estate;  that  said  A.  B.,  at  the  date  of  his  decease, 
•was  engaged  in  business  in  partnership  with  said  C.  D.,  and  that 
among  the  assets  of  said  estate  is  the  interest  of  said  estate  in  said 
partnership;  that  said  partnership  property  consists  of  a  stock  of 
goods  of  the  estimated  value  of  $10,000,  and  that  the  interest  of  the 
said  estate  in  said  property  is  the  one-half  thereof;  and  that  your 
petitioner  is  a  resident  of  said  county  and  a  legatee  of  said  estate. 

Your  petitioner  therefore  prays  that  he  may  be  appointed  special 
administrator  of  said  estate,  with  authority  to  sell  at  public  auction 
the  interest  of  said  estate  in  said  partnership  property,  and  to  settle 
with  the  said  C.  D.,  surviving  partner,  all  the  dealings  and  transac- 
tions of  the  partnership,  as  well  those  remaining  unsettled  before 
the  death  of  the  deceased  partner  as  of  the  said  parties  thereafter, 
and  to  fully  administer  said  interest  of  said  estate  in  said  partner- 
ship property  in  the  manner  provided  by  law. 

Dated  this day  of ,  19 — . 

(Signed)     G.   II. 

[Add  verification,  Form  No.  5.] 

Notice  need  not  be  given  of  the  pendency  of  this 
application,  and  the  appointment  should  be  made  as 
soon  as  practicable. 

36  Dovey  v.  Dovey,  95  Neb.  624,  146  N.  W.  923;  Killifer  v.  McLain, 
7S  Mich.  249,  44  N.  W.  405. 

(365) 


§  241  PEOBATE  AND  ADMINISTRATION.        [Chap.  20 

Form  No.  105. 

ORDER  FOR  APPOINTMENT  OF  SPECIAL  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  tMs  cause  came  on  for 

hearing  upon  the  petition  of  G.  H.  for  his  appointment  as  special 
administrator  of  the  estate  of  A.  B.,  deceased,  and,  it  appearing  to 
the  court  that  said  A.  B.,  at  the  time  of  his  decease,  was  a  partner 
of  C.  D.,  to  whom,  on  the  day  of  ,  19 — ,  letters  testa- 
mentary out  of  and  under  the  seal  of  this  court  were  granted,  and 
who  is  now  executor  of  said  estate,  and  it  further  appearing  to  the 
court  that  said  estate  is  the  owner  of  an  interest  in  said  partnership 
property,  and  that  said  interest  is  of  the  value  of  $5,000: 

It  is  therefore  ordered  that,  upon  the  filing  by  the  said  G.  H. 
of  a  good  and  sufficient  bond  in  the  penal  sum  of  $7,000,  with  two 
or  more  sureties  to  be  approved  by  this  court,  said  bond  condi- 
tioned according  to  law,  and  upon  taking  the  oath  required  by  law, 
special  letters  of  administration  be  issued  out  of  and  under  the  seal 
of  this  court  to  G.  H.,  as  special  administrator  of  the  estate  of  A.  B., 
with  authority  to  administer  according  to  law  the  interest  of  the  said 
estate  in  the  partnership  property  belonging  thereto. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  the  seal  of 

the  said  county  court  this day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

Form  No.  106. 

BOND  OF  SPECIAL  ADMINISTRATOR  APPOINTED  TO  ADMIN- 
ISTER PARTNERSHIP  MATTERS. 

Know  all  men  by  these  presents  that  we,  G.  H.,  as  principal,  and 

S.  D.  and  B.  N.,  as  sureties,  all  of  county,  Nebraska,  are 

held  and  firmly  bound  unto  the  county  judge  of  county, 

Nebraska,  in  the  penal  sum  of  seven  thousand  dollars,  for  which  pay- 
ment well  and  truly  to  be  made  we  do  hereby  jointly  and  severally 
bind  ourselves,  our  heirs,  executors,  administrators,  and  assigns,  by 
these  presents. 

Dated  this day  of ,  19 — . 

Whereas,  an  order  of  said  court  was  entered  on  the -  day 

of  ,  19 — ,  for  the  appointment  of  said  G.  H.  as  special  admin- 
istrator of  the  estate  of  A.  B.,  deceased,  to  administer  the  partnership 
property  of  said  estate: 

(366) 


Chap.  20]  PARTNERSHIP.  §  241 

Now,  therefore,  the  condition  of  this  obligation  it  such  that,  if 
the  said  G.  H.  shall  well  and  truly  administer  all  the  goods,  chattels, 
rights,  credits,  and  effects  and  interest  of  the  estate  of  the  said  A.  B. 
in  the  partnership  property  of  the  late  partnership  of  said  A.  B. 
and  said  C.  D.,  and  shall  sell,  in  the  manner  provided  by  law,  the 
interest  of  the  said  A.  B.  in  the  said  partnership  property,  and,  upon 
the  same  being  confirmed  by  the  court,  duly  account  for  and  pay 
over  unto  the  said  C.  D.,  executor,  the  proceeds  of  said  sale,  and  if 
the  said  special  administrator,  G.  H.,  shall  well  and  truly  settle  with 
the  said  C.  D.  all  the  dealings  and  transactions  of  the  said  partnership, 
as  well  those  remaining  unsettled  before  the  death  of  the  said  A.  B. 
as  of  the  said  parties  thereafter,  and  shall  present  to  the  court  a  full 
statement  of  the  matter  and  manner  of  such  settlement,  and  account 
for  and  pay  the  proceeds  of  said  settlement  as  said  court  may  direct 
and  order,  then  this  obligation  shall  be  null  and  void,  otherwise  to 
be  in  full  force  and  effect. 

(Signed)  G.  H. 
S.  D. 
B.  N. 

(For  justification  by  sureties,  see  Form  No.  3.] 

Form  No.  107. 

APPOINTMENT    OF    SPECIAL    ADMINISTRATOR    TO    ADMIN- 
ISTER PARTNERSHIP  MATTERS. 

State  of  Nebraska, 
.  County, — ss. 

To  G.  H.,  of  Said  County: 

Whereas,  on  the  day  of  ,  19 — ,  letters  testamentary 

issued  out  of  and  under  the  seal  of  the  county  court  of  said  county 
to  C.  D.;  and 

Whereas,  the  said  C.  D.  is  a  surviving  partner  of  the  said  A.  B., 
and  the  estate  of  the  said  A.  B.  has  an  interest  in  said  partnership 
property: 

You  are  hereby  appointed  special  administrator  of  the  estate  of 
A.  B.,  late  of  said  county,  deceased,  with  power  to  administer  only 
the  partnership  interest  of  the  said  estate,  and  hereby  empowered 
to  sell,  in  the  manner  provided  by  law,  the  interest  of  said  estate 
in  said  partnership  property,  to  settle  with  the  surviving  partner 
all  the  dealings  and  transactions  of  the  partnership,  as  well  those 
remaining  unsettled  before  the  death  of  the  deceased  partner  as  of 
the  said  parties  thereafter. 

(367) 


§  242  PROBATE  AND  ADMINISTRATION.         [Chap.  20 

You  are  required  to  make  a  return  of  said  sale,  or  a  full  state- 
ment of  the  matter  and  manner  of  such  settlement,  to  the  said  court, 
and,  upon  the  same  being  confirmed  by  the  court,  account  for  and 
pay  over  the  proceeds  thereof,  as  the  said  court  may  direct  and  order. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the 

seal  of  the  county  court  this day  of ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

Form  No.  108. 

NOTICE  OF  HEARING  OF  REPORT  OP  PARTNERSHIP 

SETTLEMENT. 
[Title  of  Cause  and  Court.] 

Whereas,  on  the  day  of  ,  19 — ,  L.  M.,  special  ad- 
ministrator of  the  estate  of  A.  B.,  deceased,  filed  his  report  of  the 
matter  and  manner  of  the  settlement  of  a  partnership  interest  be- 
longing to  said  estate  in  the  late  firm  of  A.  B.  and  G.  H.: 

It  is  hereby  ordered  that  said  report  be  heard  on  the  day 

of  ,   19 — ,  at  the  county  court  room  in  "said  county,  and  that 

notice  of  the  time  and  place  of  hearing  be  given  all  persons  inter- 
ested in  said  estate  by  personal  service  of  this  notice. 

(Seal)  (Signed)     J.  K., 

County  Judge. 

Dated  this  — : day  of  ,  19 — . 

§  242.    Account  of  special  administrator. 

The  special  administrator  should,  OB  or  before  the 
date  fixed  for  the  hearing,  file  his  special  administra- 
tor's account,  which  may  be  considered  immediately 
after  the  hearing  on  the  report  of  settlement,  and,  upon 
the  approval  of  the  report  and  account,  he  is  entitled 
to  his  discharge.  He  is'entitled  to  a  commission  on 
the  amount  collected,  or  such  pay  for  his  services  as 
the  court  may  deem  just.  The  usual  practice  is  to 
allow  him  a  specified  sum  for  his  services,  depending 
upon  what  it  was  necessary  for  him  to  do. 
(368) 


Chap.  20]  PARTNERSHIP.  §  242 

.Form  No.  109. 

ORDER     CONFIRMING     REPORT     OF     SETTLEMENT     OF 
PARTNERSHIP. 

[Title  of  Cause  and  Court.] 

Now,   on  this  day  of  ,   19 — ,  this  cause  came  on  for 

hearing  upon  the  report  of  C.  D.,  administrator  [special  adminis- 
trator] of  said  estate,  of  the  settlement  of  the  partnership  interests 
belonging  thereto,  and  was  submitted  to  the  court;  upon  considera- 
tion whereof,  the  court  finds  that  the  terms  of  said  settlement  are 
just,  and  that  the  best  interests  of  said  estate  will  be  subserved 
thereby.  It  is  therefore  ordered  that  said  settlement  be  and  the 
sanis  hereby  is  in  all  respects  confirmed  [if  made  by  a  special  admin- 
istrator, add  "And  the  said  C.  D.  having  filed  in  this  court  an  account 
of  his  transactions  as  special  administrator  of  said  estate,  and  said 
account  having  been  approved  by  the  court,  it  is  further  ordered 
that,  upon  the  payment  by  the  said  C.  D.  of  the  assets  of  said  estate 
in  his  possession,  as  appears  from  the  said  report  of  settlement,  less 
the  amount  allowed  him  in  his  account  for  his  lawful  commissions 
and  pay  for  his  services,  as  special  administrator,  to  G.  H.,  he  be 
discharged"]. 

(Signed)     J.  K., 
County  Judge. 

Form  Not  110. 
DISCHARGE  OF  SPECIAL   ADMINISTRATOR. 

[Title  of  Cause  and  Court.] 

C.  D.,  special  administrator  of  said  estate,  having  this  day  filed 
in  this  court  the  receipt  of  G.  H.,  administrator  of  said  estate,  for 
the  amount  belonging  to  said  estate  derived  from  his  settlement  of 
the  partneiship  assets  thereof,  he  is  hereby  discharged  as  such  special 
administrator. 

Witness  my  hand  and  the  seal  of  said  court  this  day  of 

(Signed)     J.  K., 

County  Judge. 
.   ,    24— Pro.  Ad. 


§§  243,  244        PROBATE  AND  ADMINISTRATION.         [Chap.  20 

§  243.    Sale  of  interest  of  estate  in  partnership  prop- 
erty. 

Whenever  the  personal  representative  and  the  sur- 
viving partner  are  unable  to  agree  upon  a  settlement, 
and  no  action  is  pending  in  equity  for  an  accounting 
of  the  partnership  matters  between  the  personal  repre- 
sentative and  the  surviving  partner,  the  county  court 
has  authority  to  issue  a  license  for  the  sale  of  the  part- 
nership interest  of  the  estate,  the  statute  providing 
that  the  county  court  which  shall  have  issued  letters 
testamentary  or  of  administration  upon  the  estate  of 
a  deceased  partner  may,  upon  due  notice  to  all  parties 
interested,  authorize  the  executor  or  administrator  of 
such  deceased  partner  to  sell  at  public  auction  his  in- 
terest in  the  partnership  property,  and  the  surviving 
partner  may  be  a  purchaser  at  such  sale,  the  same  as 
any  disinterested  party.  The  administrator  or  execu- 
tor making  such  sale  shall  report  his  proceedings 
thereon  to  the  court,  and,  upon  due  notice  to  all  per- 
sons interested,  the  court  may  confirm  the  sale,  or,  for 
good  reason  therefor  appearing,  may  set  the  same 
aside,  and  order  another  sale.  The  court  shall  also 
direct  the  execution  of  such  paper  titles  to  the  property 
sold  as  the  circumstances  may  require.37 

§  244.    Notice — Hearing. 

On  filing  such  application  the  court  should  set  a  date 
for  hearing  and  direct  that  notice  thereof  be  given. 
The  method  of  service  rests  in  the  discretion  of  the 

87  Rev.  Stats.,  c.  17,  §  114,  [1378]. 
(370) 


Chap.  20]  PARTNERSHIP.  §  244 

court.    Personal    service    on    the    parties    interested 
should  be  had,  if  possible.38 

The  court  has  power  on  the  hearing  to  approve  the 
report,  correct  or  modify  it  or  reject  it  altogether,  but 
there  appears  to  be  no  way  of  enforcing  the  order  or 
decree. 

Form  No.  111. 

PETITION  FOR  LICENSE  TO  SELL  PARTNERSHIP  PROPERTY. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
on  the  -  day  of  -  ,  19  —  ,  letters  testamentary  were  issued 
to  him  out  of  and  under  the  seal  of  said  court,  and  that  he  now  is, 
and  ever  since  has  been,  the  executor  of  said  estate. 

That  said  estate  is  the  owner  of  a  half  interest  in  the  partner- 
ship property  of  the  late  firm  of  A.  B.  &  F.  G.,  and  that  said  part- 
nership property  consists  of  a  stock  of  dry  goods  in  the  city  of  -  , 
said  county. 

That  your  petitioner  and  said  surviving  partner,  F.  G.,  are  unable 
to  agree  on  the  settlement  of  said  partnership  matters,  and  no  suit 
in  equity  for  an  accounting  between  said  F.  G.  and  said  estate  is  now 
pending  in  any  court. 

Your  petitioner  therefore  prays  that  an  order  of  said  court  may 
be  entered  granting  him  a  license,  as  such  executor,  to  sell  at  public 
auction  the  interest  of  said  estate  in  said  partnership  property. 

Dated  this  -       -  day  of  --  ,  19  —  . 

(Signed)     C.  D., 
By  C.  E.  A.,  His  Attorney. 

[Add  verification,  Form  No.  5.] 


38  Eev.  Stats.,  c.  17,  §  116,  [1380]. 

(371) 


§  244  PROBATE  AND  ADMINISTRATION.        [Chap.  20 

Form  No.  112. 

ORDER  TO  SHOW  CAUSE  WHY  LICENSE  SHOULD  NOT  ISSUE 
TO  EXECUTOR  TO  SELL  INTEREST  OF  ESTATE  IN  A 
PARTNERSHIP. 

[Title  of  Cause  and  Court.] 

State  of  Nebraska, 

County, — as. 

To  All  Persons  Interested  in  the  Estate  of  A.  B.,  Deceased: 

You  are  hereby  notified  that  on  the  day   of  -  ,  19 — , 

C.  D.,  executor  of  said  estate,  filed  his  petition  in  said  court  praying 
for  license  to  sell  at  public  auction  the  interest  of  said  estate  in  the 
late  partnership  of  A.  B.  &  F.  G. 

You   are   therefore   ordered  to   show  cause,   if   any   there  be,   why 
the   prayer    of   said   petitioner    should   not    be    granted,   at    the    county 

court    room   in   the   city    of   ,    said   county,    on    the   -          -    day 

of  ,  19 — .     It  is  futher  ordered  that  service  of  this  order  be 

had  by  [publication  for  three  weeks  in  the  ,  a  newspaper  printed 

and  published  in  said  county]. 

Dated  this  day  of ,  19 — . 

(Seal)  (Signed)     J.  K, 

County  Judge. 

[Service  of  this  order  ig  had  as  the  court  may  order.] 

Form  No.  113. 

LICENSE  TO  EXECUTOR  TO   SELL  INTEREST   OF  HIS  DECE- 
DENT IN  A  PARTNERSHIP. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  of  C.  D.,  executor  of  said  estate,  for  leave 
to  sell  at  public  auction  the  interest  of  said  estate  in  the  late  part- 
nership of  A.  B.  &  F.  G.,  and,  it  appearing  to  the  court  from  the 
proof  that  notice  of  the  hearing  of  said  petition  has  been  given  all 
parti  s  interested,  as  ordered  by  the  court,  and  it  further  appearing 
to  me  that  said  C.  D.  and  F.  G.  cannot  agree  upon  a  settlement,  and 
that  no  suit  in  equity  for  an  accounting  of  said  partnership  assets 
is  pending,  and  that  the  best  interests  of  the  said  estate  demand 
that  the  interest  of  said  estate  in  said  partnership  be  sold,  it  is  there- 
fore ordered  that  said  C.  D.  be,  and  he  hereby  is,  authorized  to  sell 
at  public  auction  to  the  highest  bidder  the  interest  of  the  said  estate 

(372) 


Chap.  20]  PARTNERSHIP.  §  244 

in  the  following  described  partnership  property  [describe  partnership 
property  to  be  sold] ;  that  said  C.  D.  cause  notice  of  said  sale  to  be 
given  [state  how  notice  of  sale  is  to  be  given]. 

It  is  further  ordered  that  said  C.  D.  make  a  return  to  this  court 
as  soon  as  said  sale  is  made  of  his  doings  under  this  license. 

(Seal)  (Signed)     J.  K., 

County  Judge. 

Form  No.  114. 

REPORT   OF    EXECUTOR   OR     ADMINISTRATOR   ON  SALE   OF 
PARTNERSHIP  PROPERTY. 

[Title  of  Cause  and  Court.] 

I,  C.  D.,  executor  of  said  estate,  respectfully  submit  the  following 
report  of  my  doings  under  the  license  issued  to  me  by  said  court  for 
the  sale  of  the  interest  of  said  estate  in  the  late  firm  of  A.  B.  &  F.  G. 

Pursuant  to  said  license  I  gave  notice  that  said  sale  would  be  held 

on  the  day  of  ,  19 — ,  at  the  store  building  of  the  late 

firm   in    the   city    of   ,   in    said   county,    and   caused    a    notice,   a 

copy  of  which  is  hereto  attached,  marked  "Exhibit  A,"  to  be  [state 
how  notice  given]. 

That  on  the  day  of  ,  19 — ,  that  being  the  time  and 

place  designated  in  said  notice,  I  sold  at  public  auction,  to  the  highest 
bidder  for  cash,  the  interest  of  the  estate  in  the  following  described 
property  [describe  property  as  in  license];  that  said  property  was 

sold   to   F.   G.   for   the   sum   of  dollars,   he   being   the   highest 

bidder  therefor,  and  that  being  the  highest  sum  bid;  that  in  making 
said  sale  I  used  my  best  efforts  to  obtain  the  highest  possible  price 

for   said   property;    and   that,   in   my   judgment,   said   sum   of   

dollars  is  the  fair  valuation  of  the  interest  of  said  estate  in  said 
property. 

Dated  this day  of ,  19—. 

(Signed)     C.  D., 
Executor  of  the  Estate  of  A.  B. 

(373) 


§  244  PROBATE  AND  ADMINISTRATION.  [Chap.  20 

Form  No.  115. 

CONFIRMATION    OF    EXECUTOR'S    SALE    OF    PARTNERSHIP 

INTEREST. 

[Title  of  Cause  and  Court.] 

This  cause  came  on  for  hearing  upon  the  motion  of  C.  E.  A.,  attor- 
ney for  C.  D.,  executor  of  said  estate,  to  confirm  the  sale  made  by 
said  C.  D.  of  the  interest  of  said  estate  in  the  late  partnership  of 
A.  B.  &  F.  G.;  and  it  appearing  to  the  court  that  said  sale  was  con- 
ducted pursuant  to  the  decree  of  this  court  heretofore  entered,  that 
said  proceedings  have  been  regular  in  all  respects,  and  that  the  sum 
bid  for  said  property  is  the  fair  value  thereof,  it  is  therefore  ordered 
and  adjudged  by  me  that  said  G.  D.,  executor  of  said  estate,  be  and 
he  hereby  is  directed  to  execute  and  deliver  to  said  F.  G.,  the  pur- 
chaser thereof,  for  and  on  behalf  of  the  estate,  a  bill  of  sale  of  said 
stock  of  goods  and  fixtures. 

Dated  this day  of :,  19—. 

(Seal)  (Signed)     J.  K., 

County  Judge. 

(374) 


CHAPTER  XXI, 

MORTGAGING  REAL  ESTATE  BY  EXECUTORS  AND 
ADMINISTRATORS. 

S  245.  Authority   of    Executor  or    Administrator  to    Mortgage   Real 
Estate. 

246.  Jurisdiction  of  County  Court  to  Grant  License  to  Mortgage. 

247.  Appointment  of  Special  Administrator  to  Execute  Mortgage. 

248.  Hearing  on  Petition  and  Application — License. 

249.  Mortgages  and  Notes. 

250.  Discharge  of  Special  Administrator. 

§  245.    Authority  of   executor   or   administrator   to 

mortgage  real  estate. 

An  administrator  has  only  that  -authority  over  the 
real  estate  of  his  decedent  which  is  given  him  in  ex- 
press terms  by  the  statute,  and  therefore  cannot,  unless 
empowered  by  the  court,  execute  any  mortgage  on 
the  same.  An  executor  has  no  more  power  than  an 
administrator  over  the  real  estate  of  his  testator,  un- 
less it  is  conferred  upon  him  by  the  will.  As  a  general 
proposition,  a  naked  power  to  sell  and  convey  tes- 
tator's real  estate  for  the  purpose  of  paying  the  debts 
and  making  a  distribution  of  the  residue  to  certain 
persons  does  not  empower  them  to  mortgage  the  prop- 
erty, and  a  sale  without  consideration  to  a  third  party, 
and  the  execution  of  a  mortgage  by  him,  the  estate 
obtaining  the  proceeds,  is  in  effect  a  mortgage,  and 
not  valid;1  but  if  the  disposition  of  his  estate  directed 
by  the  testator  is  of  such  a  character  as  to  authorize 
the  inference  that  he  intended  to  give  the  power  to 
mortgage,  or  the  intention  cannot  be  carried  out  unless 

1  Arlington  State  Bank  v.  Paulsen,  57  Neb.  717,  78  N.  W.  303. 

(375) 


§  246  PROBATE  AND  ADMINISTRATION.         [Chap.  21 

the  power  to  mortgage  exists,  then  a  mortgage  exe- 
cuted by  him  would  be  valid.2 

§  246.    Jurisdiction  of  county  court  to  grant  license 
to  mortgage. 

The  county  judge  may,  if  it  appear  that  the  best  in- 
terests of  the  estate  demand  it,  grant  authority  to 
executors  or  administrators  to  mortgage  any  real  estate 
belonging  to  such  estates,  when  mortgages  existing  on 
such  real  estate  are  due,  or  about  to  become  due,  and 
there  is  no  money  to  pay  or  redeem  them.  The 
amount  of  such  mortgages  cannot  be  larger  than  those 
already  on  the  real  estate.3 

The  court  acquires  jurisdiction  by  the  filing  of  a 
petition  by  the  representative,  or  other  person  inter- 
ested setting  up  the  facts  which  show  the  necessity  of 
executing  the  mortgage.4 

In  Oregon  similar  powers  are  granted  the  executor 
or  administrator,  and  he  may  also  borrow  money 
secured  by  mortgage  on  any  of  the  property  of  the 
estate,  when  the  same  can  be  secured  for  the  same  or 
a  less  rate  of  interest,  for  the  purpose  of  funding  the 
indebtedness  of  the  estate.5  The  number  of  creditors, 
whose  demands  are  unpaid  does  not  affect  the  right  of 
the  court  to  grant  the  order.6  The  procedure  is  iden- 
tical with  that  in  Nebraska,  and  the  court  obtains 
jurisdiction  by  the  filing  of  a  verified  petition,  or  an 
affidavit.7 

2  Faulk  v.  Dashiell,  62  Tex.  642;  Kent  v.  Morrison,  153  Mass.  137, 
26  N.  E.  427;  Ayres  v.  Palmer,  57  Cal.  309;  Arlington  State  Bank  v. 
Paulscn,  57  Neb.  717,  78  N.  W.  303. 

3  Rev.  Stats.,  c.  17,  §227,   [1491]. 

4  Boevink  v.  Christiaanse,  69  Neb.  256,  95  N.  W.  252. 

5  L.  O.  L.,  §  1278. 

«  Lawrey  v.  Sterling,  41  Or.  518,  69  Pac.  460. 
1  Lawrey  v.  Sterling,  supra. 

(376) 


Chap.  21]  MORTGAGING  RE AL  ESTATE.  §246 

Form  No.  115a — Oregon. 

PETITION  FOR  ORDER  TO  MORTGAGE  REAL  ESTATE. 
[Title  of  Cause  and  Court.] 
To  the  Hon.  J.  K.,  County  Judge  of  County,  Oregon: 

Comes  now  C.  D.  and  represents  that  he  is  the  duly  qualified  and 

acting  administrator  of  the  estate  of  A.  B.,  late  of  said county, 

deceased.  That  said  estate  has  paid  all  claims,  costs,  charges  and  ex- 
penses due  from  the  same,  with  the  exception  of  a  certain  demand  of 
E.  F.  upon  a  promissory  note,  upon  which  there  is  now  the  sum  of 

$ ,  with  interest  thereon  at per  cent  from  the day 

of  ,  19 — .  That  a  loan  can  be  made  upon  the  following  de- 
scribed lands  of  said  estate,  ,  for  the  sum  of  $ due  in 

years  from  date,  with  interest  at  per  cent  per  annum; 

that  all  the  personal  assets  belonging  to  said  estate  and  liable  for 
the  payment  of  debts,  costs  and  expenses  have  been  so  applied,  and 
that  by  the  payment  of  said  sum  of  $ to  said  E.  F.,  the  admin- 
istration of  said  estate  may  be  closed  and  said  real  estate  delivered 
to  the  heirs  so  mortgaged.  That  it  will  be  for  the  best  interest  of 
said  estate  to  obtain  a  loan  on  said  real  estate  and  with  the  proceeds 
thereof  pay  said  demand  of  said  E.  F. 

Your  petitioner  therefore  prays  that  he  be  granted  an  order  and 
license  as  such  administrator  to  negotiate  a  loan  on  said  real  estate 

in  the  sum  of  $ and  to  execute  and  deliver  to  the  mortgagee 

a  note  or  notes  aggregating  said  sum  of  $ and  a  mortgage  on 

said  lands  as  security  for  the  same. 

(Signed)     C.  D., 
Administrator. 

[Add  verification.] 

Form  No.  H5b — Oregon. 

ORDER    GRANTING   LICENSE   TO   MORTGAGE   PROPERTY. 
[Title  of  Cause  and  Court.] 

On  reading  and  filing  the  petition,  duly  verified,  of  C.  D.,  adminis- 
trator of  said  estate,  praying  for  an  order  licensing  him,  said  adminis- 
trator, to  execute  a  mortgage  on  the  real  estate  of  said  estate  for  the 
purpose  of  funding  the  debts  of  said  estate,  and  it  appearing  there- 
from that  [copy  of  allegations  of  petition  in  full]. 

It  is  therefore  ordered  that  said  C.  D.,  as  such  administrator  as 
aforesaid,  be  and  hereby  is  authorized  and  empowered  to  execute  and 
deliver  a  mortgage  upon  the  above-described  real  estate  in  the  sum 

(377) 


§  246  PBOBATE    AND   ADMINISTRATION.          [Chap.  21 

of  $ ,  together  with  a  note  or  notes  aggregating  said  sum,  and 

bearing  interest  at  not  to  exceed  per   cent  per  annum,  to  be 

secured  by  said  mortgage. 
Dated  this day  of ,  19 — . 

Form  No.  116. 
PETITION  FOR  LICENSE  TO  MORTGAGE  REAL  ESTATE. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  —  day  of  ,  19 — ,  letters  of  administration  upon 

the  estate  of  said  A.  B.  were  issued  to  him  out  of  and  under  the  seal 
of  said  court. 

That  said  estate  is  seised  of  real  estate  situated  in  the  county  of 

and  state  of  Nebraska,  and  described  as  follows  [describe  the 

real  estate  mortgaged],  and  which  is  encumbered  by  a  mortgage  for 

the  sum  of  dollars  ($ ),  dated  the  day  of  , 

19 — ,  and  recorded  in  the  office  of  the  register  of  deeds  of  said  county, 

in  Book  of  Mortgages,  page  ;  that  said  mortgage  was 

given  to  secure  a  promissory  note   of  even  date  therewith,  payable 

,  19 — ,  with  interest  thereon  at  the  rate  of  seven  per  cent  per 

annum,  payable  annually,  and  is  a  valid  and  subsisting  lien  on  said 

premises,  and  there   is  now  due  thereon  the  sum   of  dollars 

($ ),  with  interest  at  the  rate  of  seven  per  cent  per  annum  from 

the day  of ,  19—. 

That   your   petitioner  has    collected   from    the   personal   assets   be- 
longing to  said  estate  the  sum  of  dollars,  and  has  paid  out 

therefrom  for  allowance  for  the  support  of  the  widow  and  minor 
heirs  of  said  A.  B.;  as  ordered  by  said  court,  and  for  debts  allowed 
against  said  estate  by  said  court,  and  for  costs  and  expenses  of  ad- 
ministration, the  sum  of  dollars  ($ ),  and  now  has  on 

hand  the  sum  of  dollars  ($ ),  which  said  sum  is  insuffi- 
cient to  redeem  said  premises  from  the  lien  of  said  mortgage;  that 
there  are  no  other  personal  assets  of  said  estate  which  can  be  con- 
verted into  money  and  used  for  the  purpose  of  redeeming  said  real 

estate  from  said  lien;  that  said  real  estate  is  of  the  value  of  

dollars  ($ ),  and  yields  an  income  to  said  estate  of  the  sum  of 

dollars  ($ ). 

That   your   petitioner   has   an    opportunity   to   borrow   the   sum    of 
dollars    ($ ),   to   be   secured   by   a   first   mortgage   on   said 


above-described    premises,   for  the    period  of  years,  interest 

(378) 


Chap.  21]  MORTGAGING  REAL,  ESTATE.  §  247 

thereon  to  be  at  six  per  cent  per  annum,  payable  annually,  and  that 
the  interests  of  said  estate  will  be  subserved  by  the  borrowing  of 
said  sum  to  satisfy  a  mortgage  now  a  lien  on  said  premises,  and 

the   execution   of   a    new   mortgage   thereon   for   the   sum   of  

dollars  ($ ),  with  interest  thereon  as  aforesaid. 

Your  petitioner  therefore  prays  that  a  license  may  be  granted  him 
empowering  him  to  execute  a  mortgage  upon  said  above-described 

premises  for  the  sum  of  dollars  ($ ),  due  years 

from  date,  with  interest  thereon  at  the  rate  of  six  per  cent  per  an- 
num, payable  annually,  and  also  execute  in  behalf  of  said  estate,  a 
promissory  note  or  notes  for  the  sums  last  aforesaid,  and  to  deliver 
said  note  or  notes  and  mortgage. 

Dated  this day  of ,  19—. 

C.  D.,  Administrator. 
By  F.  W.  B.,  His  Attorney. 

[Add  verification,  Form  No.  5.] 

§  247.    Appointment  of  special  administrator  to  exe- 
cute mortgage. 

If  no  executor  or  administrator  has  been  appointed, 
the  county  judge  may,  upon  the  filing  of  a  proper  peti- 
tion, appoint  a  special  administrator,  -whose  duties  are 
confined  to  the  particular  one  of  procuring  the  license, 
executing  the  mortgage  and  accompanying  notes,  and 
attending  to  the  release  of  the  mortgage  then  thereon.8 
Xo  notice  is  required  of  the  application  for  the  ap- 
pointment of  the  special  administrator,  and  the  peti- 
tioner may  in  the  same  instrument  make  application 
for  the  grant  of  a  license  to  mortgage  the  real  estate. 
The  court,  no  doubt,  has  authority  to  require  a  bond  of 
the  special  administrator  for  the  faithful  performance 
of  his  duties,  but  it  is  not  necessary. 

8  Bev.  Stats.,  c.  17,  §  228. 

(379) 


§  247  PROBATE  AND  ADMINISTRATION.         [Chap.  21 

Form  No.  117. 

PETITION  FOR  APPOINTMENT  OF  SPECIAL  ADMINISTRATOR, 
AND  FOR  LICENSE  TO  MORTGAGE  REALTY. 

[Tillc  of  Cause  and  Court.] 

Your  petitioner,  C.  B.,  respectfully  represents  unto  the  court  that 

on  the day  of ,  19 — ,  A.  B.,  late  a  resident  of  said  county, 

departed  this  life,  leaving  a  widow,  your  petitioner,  and  D.  B.  and 
M.  B.,  children  and  heirs  at  law  of  said  A.  B.;  that  said  A.  B.  died 
intestate,  and  no  administrator  has  ever  been  appointed  of  his  said 
estate. 

That  said  A.  B.,  at  the  time  of  his  death,  was  seised  in  fee  simple 
of  the  following  described  real  estate  [describe  real  estate],  it  being 
all  the  real  estate  which  he  possessed;  that  said  real  estate  is  encum- 
bered by  a  mortgage,  which  said  mortgage  is  dated  —  — ,  19 — ,  and 
recorded  in  the  office  of  the  register  of  deeds  of  said  county  in  Book 

of  Mortgages,  page ,  and  was  given  to  secure  a  promissory 

note  of  even  date  therewith,  payable  on  the  day  of , 

19 — ,  with  interest  thereon  at  eight  per  cent  per  annum,  payable  an- 
nually, and  there  is  now  due  thereon  the  sum  of  dollars 

($ ),  with  interest  thereon  at  the  rate  of  eight  per  cent  per 

annum  from  ,  19 — ,  to  date;  that  said  property  is  of  the  value 

of  dollars  ($ ),  and  is  occupied  by  your  petitioner  and 

her  minor  children,  D.  B.  and  M.  B.,  as  and  for  a  homestead;  that  the 
personal  estate  of  said  A.  B.  consisted  only  of  his  personal  effects, 
wearing  apparel,  household  furniture,  and  other  articles  of  personalty, 
and  the  value  of  all  of  them  will  not  exceed  the  sum  of  • 

dollars  ($ ),  and  there  ia  no  money  or  assets  which  can  be 

converted  into  money  belonging  to  said  estate  with  which  to  redeem 
said  above-described  premises  from  the  lien  of  said  mortgage. 

That  your  petitioner  has  an  opportunity  to  borrow  the  sum  of 

dollars  ($ ),  to  be  secured  by  a  first  mortgage  on  .said 

above-described  premises,  for  the  period  of  years,  interest 

thereon  to  be  at  six  per  cent  per  annum,  payable  annually,  and 
that  the  interests  of  your  petitioner  and  said  minor  heirs  will  be 
subserved  by  borrowing  said  sum  to  satisfy  the  mortgage  now  a 
lien  on  said  premises,  and  the  execution  of  a  new  mortgage  thereon 
for  the  sum  of  dollars  ($ ),  with  interest  as  aforesaid. 

Your  petitioner  therefore  prays  that  letters  of  special  adminis- 
tration upon  said  estate  for  the  purpose  of  executing  and  deliver- 
ing said  mortgage  only  may  issue  to  her  out  of  and  under  the  seal 

(380) 


Chap.  21]  MORTGAGING  REAL  ESTATE.  §  248 

of  said  court,  and  that  an  order  of  said  court  may  be  made  authoriz- 
ing and  empowering  her,  as  such  special  administrator  [balance  as  in 
Form  No.  116], 

§  248.  Hearing  on  petition  and  application — License. 
No  notice  is  required  of  the  pendency  of  the  petition 
for  license  to  mortgage  real  estate.  A  formal  hearing 
must  be  had  and  the  allegations  of  the  petition  proved 
by  competent  testimony.  A  verbal  permit  is  void.9 
A  license  should  be  issued  in  due  form  and  made  a 
part  of  the  records,  and  the  executor  or  administrator 
should  file  a  report  of  his  proceedings  under  the 
license  with  the  court. 

Under  the  Oregon  practice,  a  formal  hearing  is  not 
necessary. 

Form  No.  118. 

LICENSE  TO  EXECUTOR  OR  ADMINISTRATOR    TO  MORTGAGE 
REAL    ESTATE    OF    HIS   DECEDENT. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  of  C.  D.,  administrator  of  said  estate,  for 

license  to  execute  and  deliver  a  mortgage  for  the  sum  of  

dollars  ($ )  upon  the  following  described  real  estate  [describe 

realty  as  in  petition],  and  also  a  note  or  notes  aggregating  said 
sum  to  be  secured  by  said  mortgage;  and  it  appearing  to  said  court 
that  said  property  is  now  encumbered  by  a  mortgage  for  the  sum  of 

dollars  ($ ),  and  that  the  said  sum,  with  interest  thereon 

at  the  rate  of  seven  per  cent  per  annum  from  ,  19 — ,  will  be 

due  and  payable  on  the  day  of  ,  19 — ,  and  that  there 

is  not  sufficient  personalty  belonging  to  said  estate  to  redeem  said 
realty  from  the  lien  of  said  mortgage,  and  that  the  best  interests  of  said 
estate  will  be  subserved  by  the  execution  of  a  mortgage  upon  said 
realty  to  secure  the  sum  of dollars  ($ )  : 

It  is  therefore  ordered  and  adjudged  that  the  said  C.  D.  be,  and 
he  hereby  is,  authorized  and  empowered  to  execute  and  deliver,  for 

9  Boevink  v.  Christianaase,  69  Neb.  256,  95  N.  W.  652. 

(381) 


§  248  PEOBATE  AND  ADMINISTRATION.         [Clmp.  21 

and  in  behalf  of  the  said  estate,  a  mortgage  upon  the  real  estate  above 

described  in  the  sum  of  dollars  ($ ),  and  also  a  note  or 

notes  aggregating  the  sum  of dollars  ($ ),  which  are  to 

be  secured  by  said  mortgage,  said  note  or  notes  to  bear  interest  at 
the  rate  of  six  per  cent  per  annum,  and  to  be  payable  —  -  years 
from  date  thereof. 

Given  under  my  hand,  and  the  seal  of  said  court  thereto  affixed, 

this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 
Form  No.  119. 

OBDER  FOB  APPOINTMENT  OF  SPECIAL  ADMINISTRATOR  TO 
EXECUTE  NOTES  AND  MORTGAGE. 

(Title  of  Cause  and  Court.] 

This  cause  came  on  for  hearing  upon  the  application  of  C.  B.  for 
her  appointment  as  special  administrator  of  the  estate  of  A.  B.,  de- 
ceased, for  the  purpose  of  executing  and  delivering  a  mortgage  upon 
the  following  described  real  estate,  of  which  the  said  A.  B.  died  seised 
[describe  real  estate] ;  and  it  appearing  to  the  court  that  the  said 

A.  B.  departed  this  life  on  the  day  of ,  19 — ,  being,  at 

the  date  of  his  death,  a  resident  of  said  county,  intestate,  leaving 
C.  B.,  his  widow,  and  E.  B.  ajid  F.  B.  his  children  and  heirs  at  law, 
and  that  no  administrator  has  ever  been  appointed  of  his  said  estate; 
and  it  further  appearing  to  the  court  that  the  best  interests  of  said 
estate  will  be  subserved  by  the  execution  of  said  mortgage: 

It  is  hereby  ordered  that  special  letters  of  administration  for  the 
purpose  of  the  execution  of  said  mortgage  and  notes  only  issue  out 
of  and  under  the  seal  of  said  court  to  said  C.  B.  [upon  her  filing  a 
bond  in  this  court  conditioned  to  faithfully  perform  said  duty,  in  the 
penal  sum  of dollars  ($ )]. 

Dated  this day  of >  19 — . 

(Signed)     J.  K., 

County  Judge. 
Form  No.  120. 
LETTERS  OF  SPECIAL  ADMINISTRATION. 

State  of  Nebraska, 

County, — ss. 

To  C.  B.,  Widow  of  A.  B.,  Late  of  Said  County: 

Whereas,  A.  B.,  late  of  said  county,  departed  this  life  intestate, 
being,  at  the  time  of  his  death,  a  resident  of  said  county  and  seised  of 

(382) 


Chap.  21]  MORTGAGING  REAL  ESTATE.  §  249 

real  estate  therein,  by  reason  whereof  the  granting  of  special  letters  of 
administration  upon  his  estate  devolves  upon  the  county  court  of  said 
county: 

Now,  therefore,  you  are  hereby  appointed  special  administratrix  of 
said  estate,  with  authority  only  to  execute  and  deliver  any  mortgage 
and  note  or  notes,  which  said  mortgage  may  be  given  to  secure,  which 
may  be  authorized  by  this  court,  and  also  with  power  and  authority 
to  pay  the  money  received  on  said  mortgage  in  satisfaction  of  the 
mortgage  now  a  Hen  on  said  real  estate. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 

official  seal  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

§  249.    Mortgage  and  notes. 

The  executor  or  administrator  should  obtain  the 
lowest  possible  rate  of  interest  on  the  new  mortgage 
and  reduce  its  amount  as  much  as  possible  by  applying 
personalty  on  the  old  lien.  The  authority  to  execute 
it  being  one  conferred  only  by  statute  and  the  order  of 
the  court,10  the  new  mortgage  should  show  that  it  was 
executed  pursuant  to  the  license  granted  by  the  county 
judge.11  The  holder  of  a  void  mortgage  executed  by 
a  personal  representative,  the  proceeds  of  which  have 
been  applied  in  payment  of  a  valid  mortgage,  is  enti- 
tled to  be  subrogated  to  the  rights  of  such  prior  mort- 
gage,12 but  not  if  the  prior  mortgage  was  invalid,  or 
the  proceeds  applied  to  other  purposes.13 

The  accompanying  notes  should  be  signed  by  him  as 
such  representative.  They  are  a  liability  of  the  estate 
and  not  binding  on  him  personally.14  A  purchaser  of 

10  Lawrcy  v.  Sterling,  41  Or.  618,  69  Pac.  160. 

11  Thomas  v.  Parker,  97  Cal.  456,  32  Pac.  562. 

12  Boevink  v.  Christianaase,  69  Neb.  256,  95  N.  W.  652. 

13  Henry  v.  Henry,  73  Neb.  476,  103  N.  W.  441,  100  N.  W.  789. 

14  Wisconsin  Trust  Co.  v.  Chapman,  121  Wis.  479,  99  N.  W.  341. 

(383) 


§  249  PROBATE  AND  ADMINISTRATION.         [Chap.  21 

such  notes  and  mortgages  takes  them  with  full  knowl- 
edge of  the  extent  and  limitations  on  the  powers  of 
the  mortgagor  and  payer,  and  the  rule  of  caveat  emp- 
tor  applies.16 

Form  No.  121. 
MORTGAGE  BY  PERSONAL  REPRESENTATIVE. 

Know  all  men  by  these  presents,  that  I,  C.  D.,  of  the  county  of 

and  state  of  Nebraska,  in  my  capacity  as  administrator  of  the 

estate  of  A.  B.,  late  of  said  county,  pursuant  to  license  granted  me 

by  the  county  court  of  county,  Nebraska,  on  the  day 

of  ,  19 — ,  authorizing  and  empowering  me,  as  such  adminis- 
trator, and  for  and  in  behalf  of  said  estate,  to  execute  and  deliver 
a  mortgage  upon  the  following  described  real  estate  [describe  real 

estate  as  in  petition]  for  the  sum  of  $ ,  and  also  a  note  or  notes 

which  are  to  be  secured  by  said  mortgage,  aggregating  said  sum,  said 
notes  to  bear  interest  at  the  rate  of  seven  per  cent  per  annum,  for 

and  in  consideration  of  the  sum  of  $ to  me  in  hand  paid,  the 

receipt  of  which  is  hereby  acknowledged,  do  hereby  grant,  bargain, 
sell,  and  convey  unto  L.  M.,  of  county,  Nebraska,  the  follow- 
ing described  real  estate,  situated  in  county,  Nebraska,  and 

known  and  described  as  follows  [describe  real  estate  as  in  petition], 
together  with  all  the  tenements,  hereditaments,  and  appurtenances 
thereunto  belonging  or  in  any  wise  appertaining. 

Provided,  always,  and  these  presents  are  upon  this  express  condi- 
tion, that  whereas,  said  C.  D.,  in  his  capacity  as  administrator  as 
aforesaid,  and  pursuant  to  the  license  granted  him  by  the  county  court 

of  county,  Nebraska,  has  executed  and  delivered  to  the  said 

L.  M.  a  promissory  note  of  even  date  herewith,  payable  after 

date,  with  interest  at  the  rate  of  seven  per  cent  per  annum,  payable 
annually:  Now,  therefore,  if  the  said  C.  D.,  as  administrator  as 
aforesaid,  or  his  successors  in  trust,  shall  well  and  truly  pay  or  cause 
to  be  paid  said  sum  of  money  in  said  note  mentioned,  with  interest 
thereon  according  to  the  tenor  and  effect  thereof,  and  shall  well  and 
truly  keep  and  perform  all  the  covenants  and  agreements  on  the  part 
of  said  estate  to  be  kept  and  performed,  then  these  presents  shall  be 
null  and  void;  but  if  the  said  sum  of  money,  or  any  part  thereof,  or 
any  interest  thereon,  is  not  paid  when  the  same  becomes  due,  or  if 

15  Neary  v.  Neary,  70  Neb.  319,  97  N.  W.  302. 
(384) 


Chap.  21]  MORTGAGING  REAL  ESTATE.  §  250 

the  said  mortgagor  shall  fail  to  keep  and  perform  all  the  covenants 
and  agreements  on  the  part  of  said  estate  to  be  kept  and  performed., 
then  the  whole  of  said  sum,  together  with  the  interest  then  accrued, 
shall  immediately  become  due  and  payable. 

Dated  this day  Of ,  19 — . 

(Signed)     C.  D., 

Administrator  of  the  Estate  of  A.  B.,  Deceased. 
Witnesses: 

F.  G. 
M.  N. 

State  of  Nebiaska, 

County, — ss. 

On  this  day  of  ,  19 — ,  before  me,  a  notary  public  in, 

and  for  said  county,  personally  came  C.  D.,  administrator  of  the  es- 
tate of  A.  B.,  deceased,  to  me  personally  known  to  be  the  identical 
person  whose  name  is  affixed  to  the  foregoing  instrument  as  mortgagor, 
and  acknowledged  the  execution  of  the  same  to  be  his  voluntary  act 
and  deed,  as  such  administrator,  for  the  purposes  therein  mentioned. 

Witness  my  hand  and  official  seal  this day  of ,  19 — . 

(Seal)  (Signed)     D.  J.  S., 

Notary  Public. 
Form  No.  122. 
MORTGAGE  NOTE  OF  EXECUTOR  OR  ADMINISTRATOR. 

,  Neb.,  ,  19 — . 

after  date,  for  value  received,  I,  C.  D.,  administrator  of  the 

estate  of  A.  B.,  deceased,  pursuant  to  the  order  of  the  county  court  of 

county,   Nebraska,  dated   ,   19 — ,   promise   to   pay   to   the 

order  of  E.  F. dollars  ($ )  with  interest  thereon  at 

per  centum  per  annum,  payable  annually. 

Payable  at . 

(Signed)     C.  D., 
Administrator  of  the  Estate  of  A.  B.,  Deceased. 

§  250.    Discharge  of  special  administrator. 

As  far  as  the  assets  of  the  estate  in  his  possession 
are  concerned,  such  special  administrator  is  merely 
a  medium  for  the  transfer  of  the  amount  due  on  the 
original  mortgage  to  the  mortgagee.  No  other  assets 

25— Pro.  Ad.  (385) 


§  250  PROBATE  AND  ADMINISTRATION.         [Chap.  21 

of  the  estate  come  into  his  possession,  and  there  is 
therefore  no  fund  from  which  the  costs  of  the  proceed- 
ing and  his  services  to  the  estate  can  be  paid.  If  the 
principal  of  the  original  mortgage  has  been  reduced, 
the  court  would  have  the  right  to  permit  the  new 
mortgage  to  be  executed  for  a  sum  large  enough  to 
redeem  the  lands  from  the  lien  of  such  original  mort- 
gage, and  pay  the  expenses  of  procuring  the  license, 
together  with  a  reasonable  sum  for  his  services.  He 
should  file  a  report  of  his  doings  with  the  county  court, 
and,  upon  their  approval,  he  is  entitled  to  his  dis- 
charge. 

When  an  executor  or  administrator  executes  the 
mortgage,  the  account  of  his  receipts  and  disburse- 
ments and  expenses  are  properly  included  in  his  annual 
or  final  account,  though  he  should  make  and  file  his 
report,  the  same  as  a  special  administrator. 

Form  No.  123. 

REPORT  OF  EXECUTOR,  ADMINISTRATOR,  OR  GUARDIAN  ON 
MORTGAGING  REAL  ESTATE. 

[Title  of  Cause  and  Court.] 
I,  C.  D.,   special   administrator   of   said  estate,   respectfully  report 

that,  pursuant  to  the  license  granted  me  on  the day  of , 

19 — ,  by  said  court  for  the  mortgaging  of  the  following  described  real 

estate   [describe  real  estate  as  in  mortgage],  011  the day  of 

,  19 — ,  I  executed  and  delivered  to  X.  Y.  a  promissory  note  due 

years  from  date,  with  interest  thereon  at  the  rate  of  six  per 

cent  per  annum,  and  also  on  the  same  date  I,  for  and  on  behalf  of 
said  estate,  executed  a  mortgage  upon  the  real  estate  above  described 
to  secure  the  payment  of  said  note,  and  I  received  from  said  X.  Y. 

the  sum  of  dollars  ($ ).     [I  paid  to  M.  N.  the  sum  of 

— dollars  ($ ),  being  the  amount  due  on  the  mortgage  held 

by  him  on  said  real  estate.  I  have  also  paid  the  costs  of  this  pro- 
ceeding, being  the  sum  of  dollars  ($ ),  and  now  have  in 

my  possession  the  sum  of  dollars  ($ ),  which  said  sum 


Chap.  21]  MORTGAGING  REAL  ESTATE.  §  250 

I  respectfully  pray  that  I  may  be  allowed  to  retain  for  my  services 
and  expenses  in  said  proceedings.]  [I  paid  said  sum  to  M.  N.,  that 
being  the  amount  due  on  the  mortgage  held  by  him  on  said  real  es- 
tatp.]  That  attached  hereto,  marked  "Ex.  A."  and  "Ex.  B,"  are  the  uote 
executed  by  said  A.  B.  in  his  lifetime  to  said  M.  N.,  and  a  release 
of  said  mortgage,  which  was  given  by  said  A.  B.  to  secure  the  same. 

(Signed)     C.  D., 
Administrator. 

Form  No.  124. 
CONFIEMATION  OF  REPORT. 

[Title  of  Cause  and  Court.] 

C.  D.,  special  administrator  of  said  estate,  having  filed  a  report  of 
his  doings  as  such  special  administrator  in  the  matter  of  executing  a 
mortgage  to  X.  Y.  in  renewal  of  a  mortgage  which  was,  at  the  death 
of  said  A.  B.,  a  lien  on  certain  of  his  real  estate,  it  is  hereby  ordered 
that  the  same  be  and  hereby  is  in  all  respects  confirmed,  and  said 

C.   D.   be    allowed   the    sum    of  dollars  for   his   services   and 

expenses,  and  that  he  be  discharged. 

Dated  this day  Of ,  19—. 

(Signed)     J.  K., 
County  Judge. 

(387) 


CHAPTER  XXII. 

ENFORCEMENT    OF    DECEDENT'S    CONTRACT   FOB 
SALE  OF  REAL  ESTATE. 

§  251.  Executor  or  Administrator  has  No  Inherent  Authority  to  Exe- 
cute Deed  to  Real  Estate. 

252.  Enforcement  of  Decedent's  Real  Estate  Contracts. 

253.  Petition  for  Enforcement  of  Contract  to  Convey  Real  Estate. 

254.  Notice  of  Hearing. 

255.  Hearing  on  the  Petition. 

256.  Costs. 

257.  Specific  Performance  of  Contracts  to  Convey  Realty. 

258.  'Contracts  Covering  Homesteads. 

§  251.    Executor  or  administrator  has  no  inherent 

authority  to  execute  a  deed  to  real  estate. 
An  administrator  of  a  vendor  who  had,  in  his  life- 
time, given  a  contract  or  bond  for  the  sale  of  real 
estate  has  no  power  to  execute  a  deed  to  the  same  to 
the  vendee,  though  all  the  covenants  and  agreements 
on  the  part  of  the  vendee  may  have  been  complied  with 
by  him;  neither  has  an  executor,  unless  a  power  of  sale 
has  been  given  him  by  the  will.1  An  executor  or  ad- 
ministrator may  deliver  a  deed  which  had  been  exe- 
cuted by  a  decedent  and  deposited  in  escrow,  to  be 
delivered  upon  the  performance  of  a  condition  prece- 
dent, or  the  happening  of  a  certain  event,  and  an  execu- 
tor may  also  deliver  a  deed  executed  by  his  testator 
and  directed  by  the  will  to  be  delivered  after  his 
death.2 

1  Rearich  v.  Swinehart,  11  Pa.  233;  Adams  v.  Harris,  47  Miss.  144. 

2  Adams  v.  Harris,  47  Miss.  144. 

(388) 


Chap.  22]  EEAL   ESTATE   CONTRACTS.  §252 

§  252.    Enforcement  of    decedent's  real    estate  con- 
tracts. 

Any  contract  made  by  a  decedent  during  his  lifetime 
for  either  the  purchase  or  sale  of  real  estate  survives 
his  death,  unless  otherwise  therein  provided,  and  may 
be  enforced  either  by  or  against  his  heirs,  devisees  or 
executors  or  administrators.  There  are  two  methods 
provided  by  law  for  enforcing  such  contracts.  The 
first  is  by  a  special  proceeding  in  the  district  court, 
and  is  limited  to  contracts  in  writing.3  It  may  be 
brought  by  any  person  claiming  to  be  entitled  to  the 
conveyance,4  by  the  executor  or  administrator  of  such 
person  for  the  benefit  of  the  parties  entitled  thereto,5 
or  by  the  executor  or  administrator  himself.6  The 
second  is  by  an  action  for  specific  performance,  which 
may  be  brought  whether  the  contract  is  in  writing  or 
oral.7  It  may  be  brought  by  the  person  entitled  to 
the  conveyance  against  the  heirs,  devisees,  executor  or 
administrator,8  by  the  heirs  or  devisees  against  the 
vendor,9  or  by  the  personal  representative.10 

In  Oregon  the  executor  or  administrator  may  be 
authorized  to  execute  and  deliver  a  deed  to  a  vendee 
only  in  cases  where  the  decedent  at  the  time  of  his 
death  was  a  party  to  a  bond  for  a  deed  or  other  en- 

3  Eev.  Stats.,  c.  17,  §§  166,  169,  171,  [1430],  [1433],  [1435]. 
*  Rev.  Stats.,  c.  17,  §  167,  [1431]. 

5  Eev.  Stats.,  c.  17,  §  178,  [1442]. 

6  Rev.  Stats.,  c.  17,  §  179,  [1443]. 

7  Chess'  Appeal,  4  Pa.  52;  Guilford  v.  Love,  49  Tex.  715;  Cory  v. 
Hyde,  49  Cal.  479. 

8  Rev.  Stats.,  c.  17,  §  172,  [1436]. 

»  Young  v.  Young,  45  X.  J.  Eq.  27;  House  v.  Dexter,  9  Mich.  246. 
10  Solt  v.  Anderson,  67  Neb.  103,  93  X.  W.  205. 

(389) 


§  252  PROBATE   AND   ADMINISTRATION.  [Chap.  22 

forceable  contract  requiring  him  to  convey  real  estate.11 
Jurisdiction  to  authorize  the  execution  of  such  deed 
is  vested  in  the  county  judge  of  the  county  where  the 
estate  is  being  administered.  A  report  or  verified 
petition  may  be  presented  to  him,  showing  that  all  the 
terms  and  conditions  of  the  bond  or  contract  have  been 
met  so  as  to  entitle  the  other  party  thereto  to  a  con- 
veyance, and  if  satisfied  therewith  he  shall  make  an 
order  authorizing  and  directing  the  execution  and  de- 
livery of  the  requisite  deed  to  the  proper  parties.12 

The  proceeding  is  substantially  the  same  as  on  the 
application  of  an  executor  or  administrator  under  the 
Nebraska  statute  to  complete  such  contract  when  the 
conditions  have  been  performed  by  the  vendee,  except 
that  the  issue  and  service  of  a  citation  is  not  required. 

The  purpose  of  the  special  proceeding  is  to  give  the 
executor  or  administrator  authority  to  complete  an 
executory  contract  where  the  vendee  has  clearly  com- 
plied with  his  agreements  or  is  ready  to  do  so,  and  the 
personal  representative  is  satisfied  that  it  is  for  the 
best  interest  of  all  concerned  that  the  deed  be  executed 
and  delivered.  It  is  not  a  bar  to  a  suit  for  specific  per- 
formance. The  estate  has  a  third  remedy.  The  ex- 
ecutor or  administrator  may,  in  case  of  default,  treat 
the  contract  executed  by  his  decedent  as  a  mortgage 
and  foreclose  the  same,13  or  place  the  vendee  in  statu 
quo  and  avoid  the  contract.  His  election  is  binding 
on  the  estate  and  cannot  be  revoked  except  for  fraud.14 

11  L.  O.  L.,  §  1269. 

12  L.  O.  L.,  §  1270. 

13  Hendrix  v.  Barker,  49  Neb.  369,  68  N.  W.  531;  Gardels  v.  Kloke, 
36  Neb.  593,  54  N.  W.  834. 

14  Gillilan  v.  Oakes,  1  Neb.  Unof.  893,  95  N.  W.  511;  Solt  v.  Ander- 
son, €7  Neb.  103,  93  N.  W.  205. 

(390) 


Chap.  22]  BEAL   ESTATE   CONTRACTS.  §  253 

§  253.    Petition  for  enforcement  of  contract  to  convey 
real  estate. 

The  vendee  in  a  contract  in  writing  executed  by  the 
decedent,  who  claims  that  he  is  entitled  to  a  convey- 
ance pursuant  thereto,  may  file  a  petition  for  that  pur- 
pose, setting  forth  the  facts  upon  which  such  claim 
is  predicated.15  If  he  be  not  living,  any  person  who 
would  be  entitled  to  the  estate  under  him  as  heir, 
devisee  or  otherwise,  in  case  the  conveyance  had  been 
made  according  to  the  terms  of  the  contract,  or  the 
executor  or  administrator  of  such  deceased  person  for 
the  benefit  of  the  person  so  entitled,  may  commence 
such  proceedings.16 

The  executor  or  administrator  of  a  deceased  vendor 
who  desires  to  complete  such  contract  may  file  his  peti- 
tion therefor  in  the  district  court  of  the  county  in 
which  the  land  or  any  part  thereof  is  situated,17  and 
may  include  different  contracts  with  different  persons 
and  for  different  tracts  of  land  in  one  petition.18 

The  statute  does  not  state  who  shall  be  made  parties 
when  the  petition  is  filed  by  a  vendee  or  his  personal 
representative,  but  when  filed  by  a  representative  of 
a  vendor,  the  heirs  at  law,  devisees  or  other  repre- 
sentatives of  the  deceased  vendor  when  not  made  plain- 
tiffs must  be  made  defendants.19  The  rule  appears  to 
be  the  same  as  in  cases  of  specific  performance.  All 
parties  having  an  interest  in  the  land  as  heirs  or 

15  Rev.  Stats.,  c.  17,  §  167,  [1431]. 

16  Rev.  Stats.,  c.  17,  §  178,  [1442]. 

17  Rev.  Stats.,  c.  17,  §  179,  [1443]. 
is  Rev.  Stats.,  c.  17,  §  180,  [1444]. 
M  Rev.  Stats.,  c.  17,  §  179,  [1443]. 

(391) 


..§  253  PROBATE   AND   ADMINISTRATION.  [Cliap.  22 

devisees,  or  by  virtue  of  the  marriage  relation^  must 
be  named  as  parties.20 

.  The  petition  should  set  out  the  execution  and  de- 
livery of  the  contract,  the  substantive  parts  thereof, 
with  a  description  of  the  land,  and  allege  performance 
by  the  vendee  of  all  the  covenants  and  agreements  on 
his  part  to  be  kept  and  performed.21 

Form  No.  125. 

PETITION  BY  VENDEE  TO  REQUIRE  EXECUTOR  OR  ADMINIS- 
TRATOR TO  EXECUTE  DEED. 
[Title  of  Cause  and  Court.] 
Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the day  of ,  19 — ,  one  A.  B.,  then  a  resident  of  said 

county,  entered  into  a  written  contract  with  your  petitioner,  by  the 
terms  of  which  said  A.  B.  agreed  to  sell,  and  your  petitioner  to  pur- 
chase of  said  A.  B.,  the  following  described  real  estate,  situated  in 

county,  Nebraska,  to  wit:    [Describe  real  estate  as  in  contract.] 

Your  petitioner  agreed  to  pay  said  A.  B.  for  the  said  land  the  sum  of 

dollars,  in  payments  as  follows:  dollars  on  the  

day  of  ,  19 — ,  and  dollars  on  the  first  day  of  each  and 

every  month  thereafter,  until  said  sum  of  dollars  is  fully  paid 

with  interest   on   each   and   all   of   said   payments   from   date  of   said 

contract  until  paid,  at  the  rate  of per  cent  per  annum,  payable 

annually. 

That  said  A.  B.  therein  agreed,  upon  the  payment  of  said  principal 
and  interest  as  provided  in  said  contract,  to  make  to  your  petitioner, 
his  heirs  and  assigns,  a  valid  title  in  fee  simple  to  said  land,  and  for 
that  purpose  to  execute  and  deliver  to  your  petitioner,  his  heirs  aud 
assigns,  a  good  and  sufficient  warranty  deed  for  th'e  same,  subject, 
however,  to  the  taxes  of  19 — ,  and  subsequent  taxes  which  your  peti- 
tioner agreed  to  pay,  and  that  said  contract  further  provided  that  the 
covenants  and  conditions  thereof  should  be  binding  upon  the  heirs 
and  assigns  of  the  parties  thereto. 

20  In   re   Reed,   19   Neb.   397,   27  N.  W.   391;   Holmes  v.   Columbia 
National  Bank,  4  Neb.  Unof,  893,  97  N.  W.  26. 

21  Cory  v.  Hyde,  49  Cal.  470;  Peters  v.  Phillips,  19  Tex.  70;  Carter 
T.  Jackson,  56  N.  H.  364. 

(392) 


Chap.  22]  REAL  ESTATE   CONTRACTS.  §  253 

Second.     That  on  said  day  of  ,  19 — ,  your  petitioner 

paid  to  said  A.  B.  the  sum  of dollars,  and  subsequently,  on  the 

first  day  of  each  and  every  month  thereafter,  paid  to  said  A.  B.  the 

sum  of  dollars,  with  interest  thereon  at  the  rate  of  per 

cent  per  annum,  payable  annually,  and  there  is  nothing  now  due  from 
your  petitioner  on  said  contract. 

Third.     That  your  petitioner  has  paid  all  the  taxes  and  assessments 

levied  against  said  property  since  said day  of ,  19 — ,  and 

performed  all  the  covenants  and  agreements  of  said  contract  on  his 
part  to  be  kept  and  performed. 

Fourth.     That  said  A.  B.  departed  this  life  on  the  day  of 

,  19 —  [leaving  a  last  will  and  testament]   [intestate],  and  that 

on  the  day  of  ,  19 — ,  letters  testamentary   [of  adminis- 
tration]  upon  the  estate  of  the  said  A.  B.  were  issued  out  of  and 

under    the    seal   of   the   county    court    of   county,   Nebraska,    to 

E.  F..  and  said  E.  F.  is  now  executor  [administrator]  of  said  estate. 

Filth.  That  said  A.  B.  left  him  surviving  a  widow,  C.  B.,  and  the 
following  named  heirs  at  law  [and  devisees]  : 

Sixth.  That  said  A.  B.  never  executed  and  delivered  to  your  peti- 
tioner any  deed  of  conveyance  to  said  real  estate  according  to  the 
terms  of  said  contract,  nor  did  said  A.  B.  execute  any  deed  to  said 
property,  and  deposit  the  same  in  escrow,  to  be  delivered  to  your 
petitioner  upon  the  performance  of  the  conditions  and  covenants  of 
said  contract. 

Your  petitioner  therefore  prays  that  the  court  may  appoint  a  time 
and  place  for  the  hearing  of  said  petition,  and  cause  notice  of  the 
pendency  thereof  to  be  given  to  said  parties  above  named,  and  that 
upon  said  hearing  a  decree  be  entered  authorizing  and  directing  said 
E.  F.,  executor  [administrator]  of  the  estate  of  A.  B.,  deceased,  to 
execute  for  and  in  behalf  of  said  estate  a  deed  to  said  real  estate,  and 
thereby  convey  the  same  to  your  petitioner  free  and  clear  from  all 
conveyances  and  encumbrances. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

(393) 


§  253  PROBATE   AND   ADMINISTRATION.  [Chap.  22 

Form  No.  126. 

PETITION  BY  EXECUTOR  FOR  AUTHORITY  TO  EXECUTE  DEED 
TO  LAND  SOLD  BY  DECEDENT  ON  A  CONTRACT. 

In  the  District  Court  of County,  Nebraska. 

C.  D.,  Executor  of  the  Estate  of  A.  B., 
Deceased, 

Plaintiff, 
v. 

E.  F.  and  G.  H., 

Defendants. 


Comes  now  C.  D.,  and  alleges  that  on  the  day  of 


19 — ,  A.  B.,  then  a  resident  of  said  county,  entered  into  a  written 
contract  with  the  defendant,  E.  F.,  by  the  terms  of  which  said  A.  B. 
agreed  to  sell,  and  said  E.  F.  to  buy,  the  following  described  real 
estate,  situated  in  county,  Nebraska,  to  wit:  [Describe  real  es- 
tate, and  set  out  conditions  and  covenants  in  said  contract  as  in  Form 
No.  125.] 

Second.     That  on  the  day  of  ,  19 — ,  said  E.  F.  paid 

to  said  A.  B.  the  sum  of  dollars,  and  has  paid  since  said  date 

the  sum  of  dollars,  said  sums  so  paid  as  aforesaid  being  the 

payments  of  principal  and  interest  up  to  the  day  of  -       — , 

19 — ,  and  that  the  final  payment  of  dollars  on  said  contract 

will  become  due  on  the day  of ,  1& — ,  and  that  plaintiff, 

as  administrator  as  aforesaid,  is  desirous  of  completing  said  contract 
so  made  by  said  A.  B.  in  his  lifetime. 

Third.     That  on  the day  Of ,  19—,  said  A.  B.  departed 

this  life  intestate,  and  on  the  day  of  ,  19 — ,  letters  of 

administration  out  of  and  under  the  seal  of  the  county  court  of  said 
county  were  issued  to  said  plaintiff  as  administrator  of  the  estate  of 
A.  B.,  deceased,  and  said  plaintiff  is  now  administrator  of  said  estate. 

Fourth.  That  said  A.  B.  never  executed  and  delivered  to  defend- 
ant, E.  F.,  a  deed  of  said  above-described  real  estate,  nor  did  said  A.  B. 
execute  any  deed  to  said  real  estate,  and  deposit  the  same  in  escrow, 
to  be  delivered  to  said  E.  F.  upon  the  performance  of  the  conditions  and 
covenants  of  said  contract. 

Fifth.     That  said  A.  B.  left,  him  surviving,  a  widow  and  one  heir 
at  law,  a  son,  the  defendant  G.  H.,  who  is  a  minor  of  the  age  of  — 
years. 

Plaintiff  therefore  prays  that  the  court  may  appoint  a  time  and 
place  for  the  hearing  of  said  petition,  and  cause  notice  of  the  pendency 

(394) 


Chap.  22]  REAL  ESTATE   CONTRACTS.  §  254 

thereof  to  be  given  all  parties  interested  therein,  and  that,  upon  said 
hearing,  a  decree  may  be  entered  authorizing  and  directing  said  plain- 
tiff, as  administrator  of  the  estate  of  A.  B.,  deceased,  to  execute,  for 
and  on  behalf  of  said  estate,  a  deed  to  said  real  estate  upon  the  pay- 
ment by  said  E.  F.  of  the  balance  so  due  on  said  contract,  and  thereby 
convey  the  same  to  the  said  E.  F.  free  and  clear  from  all  conveyances 
and  encumbrances,  as  provided  by  said  contract. 

Dated  this  day  of ,  19 — . 

(Signed)         C.  D., 
Administrator  of  the  Estate  of  A.  B.,  Deceased. 

§  254.    Notice  of  hearing. 

When  the  petition  is  presented  to  the  judge  of  the 
district  court  it  is  his  duty  to  set  a  time  and  place  for 
hearing  the  same,  and  order  notice  of  the  pendency 
thereof,  and  of  the  time  and  place  of  hearing,  to  be  pub- 
lished at  least  six  successive  weeks  before  such  hearing 
in  such  newspaper  or  newspapers  in  this  state  as  he 
may  deem  necessary.22 

The  notice  should  be  directed  to  the  heirs  or  devisees 
by  name.23  Personal  service  is  not  required  by  stat- 
ute, but  ought  to  be  had  in  addition  to  service  by  pub- 
lication, when  practicable. 

22  Rev.  Stats.,  c.  17,  §  168,  [1432];  In  re  Keed,  19  Neb:  397,  27  N.  W. 
391;  Solt  v.  Anderson,  67  Neb.  103,  86  N.  W.  1076. 

23  Holmes  v.  Columbia  Nat.  Bank,  4  Neb.  Unof.  893,  97  N.  W.  26, 
where  it  was  held  that  an  heir,  not  served  with  process,  except  by  a 
general  notice  by  publication  addressed  to  all  persons  interested  in  the 
estate  of  W.  W.  Holmes,  deceased,  was  not  barred  of  his  interests  by 
the  decree. 

(395) 


§  255  PROBATE   AND    ADMINISTRATION.  [Chap.  22 

Form  No.  127. 
NOTICE  OF  HEAKING. 
[Title  of  Cause  and  Court.] 
To  E.  F.,  G.  H.  and  C.  B.: 

You  are  hereby  notified  that,  on  the  day  of  ,  19 — , 

C.  D.  filed  his  petition  in  the  district  court  of  -  —  county,  Nebraska, 
the  object  and  prayer  of  which  are  to  obtain  a  decree  authorizing 
and  directing  E.  F.,  executor  of  said  estate,  to  execute  and  deliver  to 
him  [as  trustee  for  the  heirs  of  G.  H., — or,  as  administrator  of  the 
estate  of  G.  H.,  deceased]  a  deed  containing  full  covenants  of  war- 
ranty, to  the  following  described  real  estate  [describe  property],  in 
pursuance  of  the  terms  of  a  certain  written  contract  between  said 
A.  B.  and  C.  D.  [G.  H.]. 

Said  petition  will  be  heard  at  chambers  at  the  courthouse  in  the 

city  of  7  in  said  county,  on  the  day  of  ,  19 — ,  at 

the  hour  of  9  A.  M. 

It  is  further  ordered  that  notice  of  the  pendency  of  this  petition, 
and  of  the  time  and  place  fixed  for  the  hearing  thereon,  be  given 

by  publication  for  six  successive  weeks  in  the  ,  a  newspaper 

published  in  this  state. 

Dated  this day  of ,  19—. 

(Signed)     W.  M., 
District  Judge. 

§  255.    Hearing  on  the  petition. 

Upon  the  return  day,  at  the  place  fixed  for  the  hear- 
ing, upon  filing  the  proof  of  publication,  a  hearing  is 
had  before  the  judge  of  the  district  court,  and  all  per- 
sons interested  in  the  estate  may  appear  before  him 
and  defend  against  such  action,  and  the  court  may 
examine  on  oath  the  petitioner,  and  all  others  who  may 
be  produced  before  him  for  that  purpose.24 

If,  after  a  full  hearing  upon  such  petition  and  exam- 
ination of  the  facts  and  circumstances  of  such  claim, 
the  judge  is  satisfied  that  the  land  should  be  deeded 

*4  Rev.  Stats.,  c.  17,  §  168,  [1432]. 
(396) 


Chap.  22]  REAL   ESTATE    CONTRACTS.  §  256 

to  the  vendee  in  the  contract,  or  his  executor  or  admin- 
istrator, he  shall  thereupon  make  a  decree  authorizing 
and  directing  the  executor  or  administrator  to  make 
and  execute  a  conveyance  thereof  to  the  person  entitled 
thereto.25  When  the  proceeding  is  brought  by  the 
executor  or  administrator  of  the  vendor,  and  there  are 
payments  to  be  made  to  the  estate  under  the  contract, 
the  court  may  cause  the  proceeds  of  such  sale  to  be 
secured  for  the  benefit  of  the  estate,  for  which  purpose 
a  bond  is  required.26 

If  the  judge  shall  doubt  the  right  of  the  petitioner 
to  have  a  specific  performance  of  the  contract,  he  shall 
dismiss  the  petition  without  prejudice  to  the  rights  of 
the  petitioner  who  may  at  any  time  thereafter  prose- 
cute an  action  to  enforce  it.27 

§  256.     Costs. 

The  statute  contains  no  provision  in  regard  to  the 
costs.  The  executor  or  administrator,  not  having  any 
authority  to  complete  the  contract  until  the  permission 
of  the  court  is  first  had  and  obtained,  and  the  vendee 
not  being  able,  without  a  decree,  to  obtain  what  is 
justly  due  him,  it  would  be  unjust,  where  no  defense 
was  interposed,  to  compel  him  to  pay  costs  which  cir- 
sumstances  compelled  him  to  incur  in  order  to  obtain 
his  deed.  The  costs  should  therefore  be  paid  by  the 
estate. 

25  Rev.  Stats.,  c.  17,  §  169,  [1433],  §  178,  [1442]. 

26  Rev.  Stats.,  c.  17,  §  181,  [1445];  Solt  v.  Anderson,  62  Neb.  153. 

27  Eev.  Stats.,  c.  17,  §  171,  [1435]. 

(397) 


§  256  PBOBATE   AND   ADMINISTRATION.  [Chap.  22 

Form  No.  128. 

DECREE    DIRECTING    EXECUTOR    OR     ADMINISTRATOR     TO 
CONVEY  REALTY. 

[Title  of  cause  and  court,  as  in  Form  No.  125.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  of  C.  D.  for  a  decree  authorizing  and  em- 
powering E.  F.,  executor  of  the  estate  of  A.  B.,  deceased,  to  execute 
and  deliver  to  him,  said  C.  D.,  a  warranty  deed  to  the  following  de- 
scribed realty,  pursuant  to  a  contract  in  writing  executed  by  said  A.  B. 
in  his  lifetime,  and  delivered  to  said  C.  D.,  and  was  submitted  to  the 
court. 

Upon  consideration  whereof,  the  court  finds  that  due  notice  of  the 
pendency  of  said  petition,  and  of  the  time  and  place  of  the  hearing 
thereon,  has  been  given  to  all  parties  interested  as  heretofore  ordered 

by  said  court;   that  on  the day  of  ,   19 — ,   said  A.  B. 

and  said  C.  D.  entered  into  a  contract  in  writing,  by  the  terms  of 
which  said  A.  B.  agreed  to  sell,  and  C.  D.  to  purchase,  the  realty  above 
described,  and  that,  upon  the  performance  of  the  conditions  and 
covenants  of  said  contract  on  the  part  of  said  C.  D.,  to  be  kept  and 
performed,  said  A.  B.  agreed  to  execute  and  deliver  to  said  C.  D.  a 
deed  to  the  above-described  realty,  containing  full  covenants  of  war- 
ranty; that  the  conditions  and  covenants  of  said  contract  which  the 
said  G.  D.  therein  agreed  to  keep  and  perform  have  been  by  him, 
said  C.  D.,  fully  kept  and  performed,  and  he  is  entitled  to  a  convey- 
ance thereof  as  prayed  for. 

It  is  therefore  ordered  and  decreed  that  the  said  E.  F.,  executor 
as  aforesaid,  be  and  he  hereby  is  directed,  for  and  on  behalf  of  said 
estate  of  said  A.  B.,  to  execute  and  deliver  to  said  C.  D.  a  warranty 
deed  to  said  realty  within  ten  days  from  this  date.  It  is  further 
ordered  and  decreed  that,  if  said  E.  F.,  administrator,  shall  neglect 
or  refuse  to  execute  and  deliver  said  deed  as  above  described,  then  a 
duly  certified  copy  of  this  decree  may  be  filed  in  the  office  of  the  register 
of  deeds  of  said  county,  and,  when  so  filed  and  recorded,  shall  operate 
as  a  full  and  complete  transfer  of  the  legal  title  to  said  premises,  in 
the  same  manner  and  to  the  same  extent  as  though  a  deed  had  been 
executed  and  delivered  to  said  C.  D.  by  said  E.  F.,  executor,  according 
to  the  directions  of  this  decree.  And  it  is  further  ordered  that  the 

said  E.  F.,  executor,  pay  the  costs  of  this  proceeding,  taxed  at  $ . 

(Signed)     W.  M., 
District  Judge. 

(398) 


Chap.  22]  EEAL  ESTATE   CONTRACTS.  §  256 

Form  No.  129. 

DECREE  AUTHORIZING  EXECUTOR  TO  COMPLETE  CONVEY- 
ANCE OF  REALTY,  AND  EXECUTE  BOND. 

{Title  of  cause  and  court,  as  in  Form  No.  125.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

tearing  upon  the  petition  of  C.  D.,  executor  of  the  estate  of  A.  B., 
•deceased,  for  permission  to  complete  a  certain  contract  for  the  sale 
of  the  following  described  real  estate  [describe  realty  as  in  petition], 
•executed  and  delivered  by  said  A.  B.  in  his  lifetime  to  one  E.  F.,  and 
to  execute  a  deed  therefor,  and  was  submitted  to  the  court. 

Upon  consideration  whereof,  the  court  finds  that  due  notice  of  the 
pendency  of  said  petition,  and  of  the  time  and  place  fixed  for  the 
tearing  thereof,  Was  given  to  all  persons  interested,  by  publishing 

"the  same  in  the  ,  a  newspaper  printed  and  published  in  said 

state,  as  appears  by  the  proof  of  publication  thereof  on  file,  as  ordered 

l)y  said  court,  that  on  the  day  of  ,  19 — ,  said  A.  B. 

executed  and  delivered  to  E.  F.  a  certain  contract  in  writing,  by  the 
terms  of  which  the  said  A.  B.  agreed  to  sell,  and  said  E.  F.  to  buy, 
the  realty  above  described,  and  that  upon  the  performance  of  the 
conditions  and  covenants  of  said  contract  on  the  part  of  the  said  E.  F., 
to  be  kept  and  performed,  said  A.  B.  agreed  to  execute  and  deliver 
to  said  E.  F.  a  deed  to  the  above-described  realty,  containing  full 
•covenants  of  warranty;  that  there  is  now  unpaid  on  said  contract  the 

sum  of  dollars,  which  said  sum  is  due  and  payable,  according 

to  the  terms  of  said  contract  on  the  day  of ,  19 — ,  with 

interest  thereon  at  — •< —  per  cent,  and  that  said  E.  F.  has  fully  per- 
formed all  the  other  covenants  and  conditions  on  his  part  to  be  kept 
and  performed,  and,  upon  the  payment  of  the  said  sum  of dol- 
lars, as  aforesaid,  is  entitled  to  a  deed  to  said  realty,  as  provided  in 
said  contract,  and  said  C.  D.,  executor,  desires  to  complete  said 
contract  according  to  the  terms  thereof. 

It  is  therefore  ordered  and  decreed  that  said  C.  D.,  executor  of  the 
estate  of  A.  B.,  deceased,  be  and  he  hereby  is  authorized,  for  and  on 
"behalf  of  said  estate,  to  execute  and  deliver  to  said  E.  F.  a  deed  to 
•said  realty,  as  provided  in  said  contract,  upon  the  payment  to  him  by 

said  E.  F.  of  the  sum  of dollars,  with  interest  thereon  at  — — 

per  cent  per  annum,  on  the  day  of  ,  19 — ,  and  upon  the 

approval  by  the  county  court  of  said  county  of  a  bond  in  the  penal 

sum  of  dollars,  to  be  executed  by  said  C.  D.,  with  good  and 

sufficient  gurety,  to  the  county  judge  of  said  county,  conditioned  that 

(399) 


§  256  PROBATE    AND   ADMINISTRATION.  [Chap.  22 

said  C.  D.,  executor,  will  well  and  truly  account  for  all  the  proceeds 
.of  said  sale,  and  administer  the  same  according  to  law  and  the  will 
of  the  said  A.  B. 

(Signed)     W.  M., 

District  Judge. 
Form  No.  130. 

BOND  ON  EXECUTING  DEED  TO  KEALTY. 
[First  part,  as  in  usual  form  of  bond.] 
Whereas,  a  decree  has  been  made  by  the  Hon.  W.  M.,  judge  of  the 

distiict  court  of  county,  Nebraska,  authorizing  C.  p.,  executor 

of  the  estate  of  A.  B.,  deceased,  to  execute  and  deliver  to  E.  F.  a 
deed  with  full  covenants  of  warranty  to  the  following  described  realty 
[describe  real  estate  as  in  petition],  upon  the  payment  to  him  said 

executor  of  the  sum  of  dollars: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 

said  C.  D.  shall  well  and  truly  account  for  said  sum  of dollars, 

the  proceeds  of  said  sale,  and  administer  the  same  according  to  law 
and  the  will  of  said  A.  B.,  then  these  presents  to  be  null  and  void; 
otherwise  to  be  and  remain  in  full  force  and  effect. 

(Signed)     C.  D. 
L.  M. 

Bond  and  surety  approved  by  me  this day  of  —      — ,  19 — . 

(Signed)     W.  M., 
Judge  of  District  Court. 

.      .     .  Form  No.  13L 

EXECUTOR'S  OE  ADMINISTRATOR'S  DEED  ON  SALE  OF  REAL 
ESTATE  PURSUANT  TO  CONTRACT. 

Know  all  men  by  these  presents,  that  I,  C.  D.,  executor  of  the  es- 
tate of  A.  B.,  deceased,  by  virtue  of  the  authority  conferred  upon  me 
as  such  executor  by  a  decree  of  the  Hon.  W.  M.,  judge  of  the  district 

court  of  county,  Nebraska,  dated  ,  19 — ,  and  which  said 

decree  is  in  the  words  and  figures  following  [copy  decree],  do  hereby 
grant,  bargain,  sell,  and  convey  unto  E.  F.,  of  -  —  county,  —  — , 

the  following  real  estate  situated  in  county,  Nebraska,  and 

described  as  follows  [describe  realty  as  in  petition],  together  with 
all  the  tenements,  hereditaments,  and  appurtenances  to  the  same 
belong'ng. 

To  have  and  to  hold  the  above-described  premises,  with  the 
appurtenances,  unto  the  said  E.  F.  and  his  heirs  and  assigns. 

(400) 


Chap.  22]  EEAL  ESTATE   CONTRACTS.  §  257 

,  And  I.  C.  D.,  as  executor  of  the  estate  of  said  A.  B.,  and  for  and 
in  beha'f  of  said  estate,  do  hereby  covenant  with  the  «aid  E.  F.,  his 
he'rs  and  assigns,  that  said  estate  is  lawfully  seised  of  said  premises, 
that  they  are  free  from  encumbrances,  and  that  said  estate  has  good 
right  and  lawful  authority  to  sell  the  same,  and  I,  C.  D.,  do  in  my 
rapacity  as  executor  as  aforesaid,  and  for  and  in  behalf  of  said  es- 
tate, hereby  covenant  to  warrant  and  defend  the  said  premises  against 
the  lawful  claims  of  all  persons  whomsoever. 

Signed  this day  of >  19 — . 

C.  D. 

In  presence  of: 
G.  H. 
L.  M. 

§  257.    Specific  performance  of  contracts  to  convey 
realty. 

Whenever  any  person  who  is  bound  by  contract  to 
convey  real  estate  dies  before  the  conveyance  is  made, 
the  vendee  may  prosecute  an  action  for  specific  per- 
formance of  the  same  against  the  heirs,  devisees,  execu- 
tor or  administrator  of  the  decedent.28  An  adminis- 
trator, it  has  been  held,  may  also  bring  an  action  for 
the  same  purpose.  He  may  compel  a  vendee  to  per- 
form and  obtain  license  to  execute  the  conveyance.29 

The  rules  governing  parties  to  the  action,  discretion 
of  the  court  in  awarding  performance,  and  proceedings 
generally  in  the  action  are  the  same  as  in  ordinary 
cases  for  specific  performance.  The  court  may  require 
the  personal  representative  to  join  in  the  conveyance 
with  such  of  the  heirs  or  devisees  as  live  in  this  state.30 
Every  conveyance  made  in  pursuance  of  such  decree 
shall  be  effectual  to  pass  the  estate  contracted  as  fully 

28  Rev.  Stats.,  c.  17,  §  172,  [1436]. 

28  Solt  v.  Anderson,  62  Neb.  153,  86  N.  W.  1076. 

80  Rev.  Stats.,  c.  17,  §§  173,  174,  I143?],  [1438]. 

26— Pro.  Ad.  (401) 


§  258  PROBATE   AND   ADMINISTRATION.  [Chap.  22 

as  if  the  contracting  party  himself  was  still  living  and 
then  executed  the  same.31  A  copy  of  the  decree,  duly 
certified  and  recorded  in  the  office  of  the  register  of 
deeds  where  the  land  is  located,  gives  the  person  the 
right  to  the  possession  of  the  lands  and  to  hold  the 
same  according  to  the  same  tenure  as  if  they  had  been 
conveyed  by  deed,  but  does  not  prevent  the  court  from 
enforcing  such  decree  by  proper  process  according  to 
the  usual  course  of  proceedings.32 

§  258.    Contracts  covering  homesteads. 

A  contract  for  the  sale  of  the  one  hundred  and  sixty 
acres  or  the  two  lots  which  make  up  the  family  home- 
stead cannot  be  enforced  unless  it  is  both  signed  and 
acknowledged  by  both  husband  and  wife.33  If  the 
contract  includes  the  homestead  with  other  tracts  of 
land  it  is  also  unenforceable.  To  specifically  enforce 
such  contract  would  be  to  substitute  the  opinion  of  the 
court  for  the  agreement  of  the  parties.34 

31  Rev.  Stats.,  c.  17,  §  175,  [1439]. 

32  Rev.  Stats.,  c.  17,  §§  176,  177,  [1440],  [1441]. 

33  Solt  v.  Anderson,  67  Neb.  103,  93  N.  W.  205;  Id.,  63  Neb.  734,  89 
N.  W.  206;  Meisner  v.  Hill,  92  Neb.  435,  138  N.  W.  583. 

34  Anderson  v.  Schertz,  94  Neb.  390,  143  N.  W.  238. 

(402) 


CHAPTER  XXIII. 

FOREIGN  AND  ANCILLARY  ADMINISTRATION. 

i  259.     Limitation   on   Powers   of   Executor   or   Administrator   at   Com- 
mon Law. 

260.  Powers    of    Foreign    Executor    or    Administrator    Within    this 

State. 

261.  Limitation   on   Powers   of   Foreign  Representatives. 

262.  Eights  of  Nebraska  Administrator  in  Other  States. 

263.  Jurisdiction  of  the  Court  to  Appoint  Ancillary  Administrator. 

264.  Purposes  for  Which  Appointment  Proper. 

265.  Procedure  for  Appointment. 

266.  Hearing — Order  for  Appointment. 

267.  General  Eules  Governing  Ancillary  Administration. 

268.  General  Powers  and  Duties  of  Ancillary  Administrators. 

269.  Allowance  and  Payment  of  Claim. 

270.  Accounting  by  Ancillary  Administrators. 

271.  Disposition  of  Surplus  After  Paying  Debts. 

§  259.    Limitations  on  powers  of  executor  or  admin- 
istrator at  common  law. 

At  common  law  the  jurisdiction  of  an  executor  or 
administrator  was  strictly  limited  to  the  confines  of 
the  jurisdiction  from  which  he  received  his  appoint- 
ment. He  had  no  right  to  any  part  of  the  assets  of  his 
decedent  beyond  the  limits  of  his  state  or  country,  and 
was  not  responsible  for  them.  If  he  wished  to  reach 
property  or  collect  debts  belonging  to  the  estate  in 
another  jurisdiction,  he  had  to  first  take  out  letters 
of  administration  therein  or  procure  the  appointment 
of  someone  else  as  an  ancillary  administrator.  His 
rights  in  this  state  are  therefore  entirely  statutory.1 

1  Burton  v.  Williams,  63  Neb.  431,  88  N.  W.  765;  Godwin  v.  Jones, 
3  Mass.  514;  Vickery  v.  Beier,  16  Mich.  50;  Oilman  v.  Oilman,  54  Me. 
453;  Moore  v.  Fields,  42  Pa.  472;  Estate  of  Appel,  66  Cal.  432,  6  Pac. 
7;  Lines  v.  Lines,  142  Pa.  149,  21  AtL  849. 

(403) 


§  260  PROBATE   AND   ADMINISTRATION.  [Chap.  23 

§  260.    Powers  of  foreign  executor  or  administrator 
within  this  state. 

The  Nebraska  statute,  while  not  entirely  doing  away 
with  the  necessity  of  ancillary  administration,  has 
given  a  foreign  executor  or  administrator  very  exten- 
sive authority  over  the  assets  situated  within  this 
state.  Such  rights,  however,  as  such  foreign  repre- 
sentative, cease  when  ancillary  letters  issue  here. 
He  has  the  right  to  commence  and  prosecute  any  suit 
or  action  in  any  court  in  this  state  in  his  capacity  as 
executor  or  administrator,  in  like  manner  and  with 
like  restrictions  as  a  nonresident  may  be  permitted  to 
sue,  provided  that,  in  case  any  executor  or  adminis- 
trator shall  have  been  appointed  in  this  state,  such 
person  only  shall  be  entitled  to  prosecute  actions  or 
suits  within  this  state  in  his  capacity  as  such  executor 
or  administrator.2 

The  plirase  "suit  or  action"  in  the  statute  above 
cited  is  limited  to  actions  at  law  or  in  equity  and  does 
not  include  special  proceedings,  like  mortgaging  real 
estate  or  sales  of  lands  for  payment  of  debts.3 

The  right  to  maintain  suits  also  gives  him  the  right 
to  receive  and  receipt  for  debts  and  other  property  of 
the  estate  within  this  state,4  assign  mortgages,5  become 
substituted  as  plaintiff  in  an  action  brought  by  his 
decedent  and  pending  at  the  date  of  his  death,6  and 

2  Rev.  Stats.,  c.  17,  §  162,  [1426];  Jackson  v.  Phillips,  57  Neb.  189, 
77  N.  W.  683;  Cox  v.  Ytasel,  63  Neb.  431,  68  N.  W.  483. 

3  McAnnulty  v.  McClay,  16  Neb.  420,  20  N.  W.  266. 

4  Mart;n  v.  Gage,  147  Mass.  204,  17  N.  E.  310;  Putnam  v.  Pitney, 
45  Minn.  242,  47  N.  W.  790. 

5  Reynolds  v.  McMullen,  55  Mich.  5C9,  22  N.  W.  41. 
«  Hendrix  v.  Rieinan,  6  Neb.  522. 

(404) 


Chap.  23]  ANCILLARY    ADMINISTRATION".  §  261 

by  filing  certified  copies  of  his  appointment,  etc.,  obtain 
a  license  from  the  district  court  for  the  payment  of 
debts  or  legacies,7  but  he  cannot,  relying  on  his  foreign 
appointment  alone,  procure  a  license  to  sell.8 

As  far  as  the  collection  of  personal  assets  is  con- 
cerned, he  has,  with  the  exception  of  summary  pro- 
ceedings for  disclosure  of  assets,  substantially  the  same 
powers  as  a  local  representative,  and  for  such  purpose 
alone  no  necessity  exists  for  his  appointment.9 

§  261.  Limitations  on  powers  of  foreign  representa- 
tives. 

No  action  can  be  maintained  against  a  foreign  execu- 
tor or  administrator  in  this  state,10  and  the  same  rule 
which  forbids  his  being  made  a  defendant  in  an  orig- 
inal action  would  also  prevent  a  suit  being  revived 
against  him  as  a  defendant. 

A  power  of  sale  given  a  foreign  executor  by  will  is 
not  per  se  authority  to  sell  the  land,  if  located  in  this 
state.11  The  will  must  be  probated  and  letters  issued 
in  this  state,  but  where  the  rights  of  third  parties  have 
not  intervened,  a  subsequent  probate  of  the  will  would 
cure  the  defect.12 

1  Rev.  Stats.,  c.  17,  §  214,   [1478]. 

8  McAnnulty  v.  McClay,  16  Neb.  420,  20  N.  W.  266. 

»  Mackcy  v.  Coxe,  18  How.  (U.  S.)  104;  Wilkins  v.  Ellett,  9  Wall. 
(U.  S.)  740;  Abbott  v.  Miller,  10  Mo.  141. 

10  Burton  v.  Williams,  63  Neb.  431,  88  N.  W.  765;  Creighton  v. 
Murphy,  8  Neb.  349,  1  N.  W.  138;  Vaughan  v.  Northrop,  15  Pet. 
(U.  S.)  1. 

U  League  v.  Williamson,  33  Tex.  Civ.  App.  647,  77  S.  W.  435;  Green 
v.  Alden,  92  Me.  177,  42  .M1.  358. 

12  Brown  v.  Smith,  101  Me.  545,  64  Atl.  915. 

(405) 


§  262  PROBATE    AND    ADMINISTRATION.  [Chap.  23 

There  are  no  statutes  in  Oregon  giving  any  powers 
to  a  foreign  executor  or  administrator;  therefore  the 
common  law  governs  and  the  issue  of  ancillary  letters 
is  necessary  to  enable  the  estate  to  enforce  its  demands. 
The  personal  representative,  however,  is  not  barred 
from  bringing  actions.  He  may,  by  virtue  of  the  domi- 
ciliary letters,  commence  a  suit,  but  before  trial  he 
must  have  qualified  by  procuring  letters  testamentary 
or  of  administration  in  Oregon.13  The  taking  out  of 
letters  dates  back  to  the  commencement  of  the  suit.14 

§  262.    Rights  of  Nebraska   administrator  in   other 
states. 

Independent  of  any  statute,  the  home  executor  or 
administrator  has  the  right  to  receive  assets  in  another 
state  and  receipt  for  the  same.  If  no  ancillary  admin- 
istrator is  appointed,  it  is  his  duty  to  take  charge  of 
and  collect  such  foreign  assets  in  so  far  as  the  laws  of 
such  foreign  state  permit,15  and  his  liability  therefor 
is  just  the  same  as  for  assets  received  in  this  state.16 
If  he  takes  out  ancillary  letters  or  they  are  issued  to 
another  person,  he  is  only  liable  in  this  state  for  the 
surplus  transmitted  to  him  after  administration  has 
been  completed  in  such  other  state.17 

13  Gray  v.  Franks,  86  Mich.  382,  49  N.  W.  130;  Leahy  v.  Haworth, 
141  Fed.  850;  Hodges  v.  Kimball,  91  Fed.  845. 

n  Black  v.  Henry  G.  Allen  Co.,  42  Fed.  618;  Doolittle  v.  Lewis,  7 
Johns.  Ch.  (N.  Y.)  45. 

15  Denny  v.  Faulkner,  22  Kan.  89;  Vroom  v.  Van  Horn,  10  Paige 
Ch.  (N.  Y.)  49. 

10  Section  414,  post. 

17  Clark  v.  Blackington,  110  Mass.  372;  Jennison  v.  Hapgood,  10 
Pick.  (Mass.)  78. 

(406) 


Chap.  23]  ANCILLARY    ADMINISTRATION.          §§  263,  264 

§  263.    Jurisdiction   of   court   to   appoint   ancillary 

administrator. 

An  ancillary  administrator  is  an  administrator  with 
or  without  the  will  annexed  appointed  in  a  state  other 
than  that  in  which  decedent  last  resided.  The  power 
of  the  county  court  to  grant  letters  depends  upon  the 
existence  of  assets  within  the  county  at  the  date  of 
decease.  They  may  consist  entirely  of  real  estate,18 
or  a  claim  for  damages  under  the  statute  for  causing 
the  death  of  decedent.19  If  such  assets  were  not  in 
the  state  at  the  time  of  his  death,  but  were  brought 
here  afterward,  the  court  should  decline  to  grant  let- 
ters. The  appointment  of  an  administrator  in  the 
state  of  decedent's  domicile  vests  such  assets  in  him 
for  the  purposes  of  administration  as  of  the  date  of  his 
decedent's  death,  and  our  statutes  give  him  ample 
power  to  recover  them.20  Letters  may  issue  though  no 
representative  has  yet  been  appointed  in  the  home 
state.21 

§  264.    Purposes  for  which  appointment  proper. 

When  a  person  dies  testate,  leaving  an  estate  con- 
sisting of  realty  or  personalty,  or  both,  and  by  the 
terms  of  the  will  the  executor  is  vested  with  special 
duties  in  regard  to  the  same,  which  powers  are  to  be 
exercised  in  this  state,  or  seised  of  real  estate,  or  when 
a  nonresident  dies  intestate,  seised  of  real  estate  in 

18  Moore's  Estate  v.  Moore,  33  Neb.  509,  50  N.  W.  443. 

l»  Missouri  Pac.  R.  R.  Co.  v.  Lewis,  24  Neb.  248,  40  N.  W.  401. 

20  Martin  v.  Gage,  147  Mass.  204,  17  N.  E.  310;  Valentine  v.  Jack- 
eon,  9  Wend.  (N.  Y.)  302;  Holcomb  v.  Phelps,  16  Conn.  127. 

21  Morefield  v.  Harris,  126  N.  C.  626,  36  S.  E.  125. 

(407) 


§  265  PROBATE   AND    ADMINISTRATION.  [Chap.  23 

this  state,  ancillary  administration  is  the  best  method 
the  law  provides  for  completing  the  chain  of  title  to 
the  real  estate  and  confirming  the  rights  of  an  execu- 
tor. Such  administration  is  also  proper  when  on 
account  of  the  absence  from  the  state  of  the  executor 
or  administrator  it  appears  to  be  for  the  best  interests 
of  the  estate  that  there  be  someone  on  the  ground 
with  ample  authority  to  look  after  the  interest  of  the 
estate.22 

The  usual  purpose  in  securing  the  appointment  of 
an  ancillary  administrator  is  to  save  money  and  time 
for  the  local  creditors,  by  giving  them  an  opportunity 
to  present  their  claims  and  receive  payment  in  this 
state.  Where  real  estate  is  involved,  it  is  the  only 
sure  method  of  completing  the  chain  of  title. 

§  265.    Procedure  for  appointment. 

The  procedure  for  the  appointment  of  an  ancillary 
administrator  is  substantially  the  same  as  for  the  ap- 
pointment of  an  administrator  or  for  the  issue  of  letters 
testamentary. 

The  petition  is  usually  filed  by  the  domiciliary  ad- 
ministrator or  someone  in  his  behalf.  It  may  be  made 
by  a  creditor  residing  within  this  state,  if  not  filed  until 
after  thirty  days  from  the  date  of  the  death  of  the 
decedent.  A  nonresident  creditor  cannot  compel  the 
appointment  of  such  representative,  for  the  ancillary 
administrator  would  have  no  greater  powers  to  convert 
the  assets  into  money  than  the  executor  or  domiciliary 

22  Mansfield  v.  McFarland,  202  Pa.  173,  51  Atl.  763;  Brown  v.  Smith, 
101  Me.  545,  64  Atl.  515. 

(408) 


Chap.  23]  ANCILLARY    ADMINISTRATION.  §  265 

administrator,  and  the  creditor  would  gain  nothing 
thereby.23 

A  county  to  whom  the  decedent  was  indebted  for 
unpaid  personal  taxes  is  not  a  proper  petitioner.24 

The  petition  may  be  filed  before  the  home  represen- 
tative has  received  his  letters.25 

When  filed  within  thirty  days  from  decedent's  death 
or  when  no  domiciliary  letters  have  been  issued  or  peti- 
tioned for,  the  right  of  preference  is  generally  recog- 
nized as  in  other  cases.26  The  home  representative  is 
a  proper  administrator,  especially  where  there  is  little 
work  to  be  done.  The  matter  rests  largely  in  the  dis- 
cretion of  the  court,27  and  if  there  is  much  to  be  done, 
a  resident  of  the  county  can  give  it  better  attention 
than  a  nonresident  of  the  state. 

The  petition  should  contain  substantially  the  same 
allegations  as  for  general  administration,  and  in  addi- 
tion should  set  up  the  grant  of  letters  in  the  home 
state  or  country,  if  they  have  been  issued.  It  may  be 
resisted  by  the  home  representative,  or  heirs  or  lega- 
tees, either  on  the  ground  of  lack  of  jurisdiction,  or 
that  it  is  not  for  the  best  interests  of  the  estate,  or 
objections  may  be  made  to  the  nominee  of  the  peti- 
tioner.28 

23  In  re  Williams'  Estate,  130  Iowa,  553,  107  N.  W.  608;  Putnam  v. 
Pitney,  45  Minn.  242,  47  N.  W.  791. 

24  Commissioners  Dawes  Co.  v.  Furay,  5  Neb.  Unof.  507,  99  N.  W. 
271. 

25  Burbank  v.  Payne,  17  La.  Ann.  15;  Clark  v.  Clement,  33  N.  H. 
563. 

26  Dalrymple  v.  Gamble,  66  Md.  298,  8  Atl.  468,  7  Atl.  683. 

27  Fletcher's  Admr.  v.  Sanders,  7  Dana  (Ky.),  345. 

28  Smith   v.   Sherman,   4   Cush.    (Mass.)    408;    Martin   v.   Gage,   147 
Mass.  204,  17  N.  E.  310. 

(409) 


§  266  PROBATE   AND    ADMINISTRATION.  [Cliap.  23 

Form  No.  132. 

PETITION    FOB    APPOINTMENT    OF    ANCILLARY    ADMINIS- 
TRATOR. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  day  of  ,   19 — ,  A.  B.,  late  of  county  of 

and    commonwealth    of    ,    departed    this    life    at    the    city    of 

,   in   said   county    of   ,    intestate;    that    said    A.   B.   was, 

immediately  preceding  his   death,   a  resident  and  inhabitant  of  said 

county  of  ,  and  was  possessed  of  real   and  personal   property 

situated  in  the  said  county  of  and  state  of  Nebraska,  of  the 

value  of  - — : —  dollars;  that  on  the "day  of ,  19 — ,  your 

petitioner  and  G.  H.  were  duly  appointed  administrators  of  said  estate 

by  the  probate  court  of  the  said  county  of  and  commonwealth 

of . 

Your  petitioner  further  shows  that  no  last  will  and  testament  of 
said  A.  B.  has  been  discovered,  nor  is  your  petitioner  aware  of  the 
existence  of  any  such  instrument,  and  your  petitioner  believes  that 
said  A.  B.  died  intestate;  that  said  A.  B.  left,  him  surviving  [give 
names  and  residence  of  widow  and  heirs,  and  ages  of  minors  so  far  as 
known;  if  not  known,  so  state]. 

Your  petitioner  therefore  prays  that  letters  of  administration  upon 
said  estate  situated  within  this  state  only  may  be  granted  to  H.  C.  M., 

of  the  city  of ,  in  said  county  of ,  upon  the  goods,  rights, 

and  chattels  of  said  deceased  within  this  state. 

Dated  this day  of ,  19—. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

§  266.    Hearing — Order  for  appointment. 

The  notice  of  hearing,  service  and  hearing,  are  the 
same  as  in  case  of  ordinary  administrators,  and  a  like 
bond  should  be  required. 

The  order  for  appointment  is  a  final  one,  and  subject 
to  appeal.  The  domiciliary  representative  is  held  to 
be  an  interested  party  and  entitled  to  an  appeal,  as 
(410) 


Chap.  23]  ANCILLARY    ADMINISTRATION.  §  267 

well  as  a  widow  or  other  beneficiary.29  He  can  be 
removed  from  office  for  the  same  causes  and  in  the 
same  manner  as  regular  administrators  or  executors.3* 

§  267.  General  rules  governing  ancillary  adminis- 
tration. 

The  administration  granted  within  this  state  extends 
to  all  the  estate  of  the  deceased  in  this  state,  and  ex- 
cludes the  jurisdiction  of  the  court  or  probate  of  every 
other  county.31 

While  the  personal  representative  appointed  at  the 
county  of  the  late  domicile  of  the  decedent  is  usually 
spoken  of  as  the  principal  administrator,  and  the  an- 
cillary one  as  his  subordinate,  yet  the  authority  of  the 
latter  is  complete  and  distinct  over  all  the  assets  of 
the  estate  within  the  confines  of  this  state.  The  lex 
domicilii  governs  the  distribution,  but  the  lex  loci  rei 
sitae  the  collection  and  administration  of  the  person- 
alty. The  ancillary  administrator  is  governed  by  the 
laws  of  this  state  and  the  orders  and  decrees  of  the 
court  appointing  him,  in  executing  his  bond,  making 
his  inventory  and  appraisement,  reducing  the  assets 
of  the  estate  to  possession,  taking  possession  of  the 
realty  and  managing  the  same,  paying  creditors,  ac- 
counting for  and  making  final  payments  of  the  residue 
in  his  hands,  and  performing  all  other  acts  necessary 
to  the  due  administration  of  the  estate  in  this  state. 
He  can  be  removed  by  no  other  court  than  that  which 
granted  him  his  letters,  and  all  questions  arising  in 

29  Graves  v.  Tilton,  63  N.  H.  192;  Shaw,  Appellant,  81  Me.  207,  16 
Atl.  662. 

30  See  §  155,  supra. 

31  Rev.  Stats.,  c.  17,  §  74,  [1338]. 

(411) 


§  268  PROBATE    AND    ADMINISTRATION.  [Chap.  23 

regard  to  his  rights,  powers  and  liabilities  must  be 
determined  according  to  the  laws  of  this  state,  and  by 
the  courts  thereof.32 

§  268.    General  powers  and  duties  of  ancillary  ad- 
ministrators. 

The  ancillary  administrator  should  include  in  his 
inventory  and  charge  himself  with  all  the  local  assets 
of  the  estate,  the  right  of  the  executor  or  home  admin- 
istrator to  them  terminating  as  soon  as  his  letters  are 
issued  to  him.33  He  should  take  charge  for  the  estate 
of  all  litigation  of  such  estate  pending  herein,34  includ- 
ing actions  which  may  have  been  revived  by  the  home 
administrator,  and  may  maintain  any  action  or  pro- 
ceeding which  could  be  maintained  by  any  executor  or 
administrator,  the  situation  of  the  estate  so  far  as  such 
matters  are  concerned  being  the  same  as  though  his 
decedent  was  at  the  date  of  his  death  a  resident  of 
this  state.35 

His  authority  excludes  the  right  of  the  home  admin- 
istrator over  all  the  assets  of  the  estate  within  this 
state.  He  has  sole  authority  to  collect  the  debts  due. 
Notes  secured  by  mortgages  on  local  real  estate  are 
within  this  rule,  and  he  has  power  to  release  them.36 
A  voluntary  payment  by  a  debtor  to  the  home  repre- 

/ 

32  Hey  dock's   Appeal,   7  N.  H.  496;   Hooper  v.  Olmstead,  6   Pick. 
(Mass.)  481;  Clark  v.  Clement,  33  N.  H.  563;  Blackwood  v.  Reg.,  8 
App.  Gas.  82. 

33  Story,  Confl.  Laws,  514a;  Trecothick  v.  Austin,  4  Mason,  33;  Fed. 
Cas.  No.  14,164. 

34  Eev.  Stats.,  c.  17,  §  157,  [1421]. 

35  Durie  v.  Blauvelt,  49  N.  J.  L.  114,  6  Atl.  312;  Sloan  v.  Sloan,  21 
Fla.  589. 

36  Eeynolds  v.  McMullen,  55  Mich.  568,  22  N.  W.  41. 

(412) 


Chap.  23]  ANCILLARY    ADMINISTRATION.  §  269 

sentative  is  no  defense  to  an  action  on  the  same  by 
him.37 

There  is  no  privity  between  him  and  the  home  per- 
sonal representative  whether  the  latter  be  an  executor 
or  administrator.38  A  judgment  against  one  in  his 
representative  capacity  will  not  affect  the  other  so 
far  as  the  assets  which  the  other  has  received  are  con- 
cerned,39 and  a  judgment  in  one  jurisdiction  cannot  be 
made  the  basis  of  an  action  against  him  in  another.40 

The  rule  is  different  where  the  same  person  is  ap- 
pointed executor  by  the  will  in  different  states,  or 
different  executors  are  appointed  in  different  states 
in  the  same  will.  In  such  cases  a  judgment  against 
the  executor  in  one  state  is  prima  facie  evidence 
against  him  in  the  other,  and  a  judgment  against  one 
of  the  several  executors  is  prima  facie  judgment 
against  them  all.41 

§  269.    Allowance  and  payment  of  claims. 

The  weight  of  authority  is,  that  a  foreign  as  well 
as  a  local  creditor  may  present  his  demand  and  have 
same  allowed  and  paid  by  the  ancillary  administra- 
tor,42 and  on  account  of  the  lack  of  privity  between 
the  ancillary  representatives,  its  rejection  in  the  home 

37  Vaughan  v.  Barrett,  5  Vt.  333;  Furguson  v.  Morris,  67  Ala.  389; 
Equitable  Life  Ins.  Soc.  v.  Vogel,  76  Ala.  441. 

38  Creighton  v.  Murphy,  8  Neb.  349,  1  N.  W.  138. 

39  Brathwaite  v.  Harvey,  14  Mont.  208,  36  Pac.  38;  Merrill  v.  New 
England  Life  Ins.  Co.,  103  Mass.  245. 

40  Creighton  v.  Murphy,  8  Neb.  349,  1  N.  W.  138;  Price  v.  Mace,  47 
Wis.  23,  1  N.  W.  336. 

41  Creighton  v.  Murphy,  8  Neb.  349,  1  N.  W.  138;  Hill  v.  Tucker, 
13  How.  (U.  S.)  458. 

42  State  v.  Kock  Co.  Probate  Court,  67  Minn.  51,  69  N.  W.  609. 

(413) 


§  269  PROBATE    AND   ADMINISTRATION.  [Chap.  23 

state  would  not  prevent  its  being  proved  in  the  other 
state.43  The  policy  of  the  law  is  to  favor  local  credi- 
tors, and  a  claim  filed  or  action  brought  under  such 
circumstances  looks  suspicious.  All  foreign  claims 
should  be  very  carefully  investigated.44 

At  the  expiration  of  the  proper  time,  the  reduction 
of  assets  to  possession  being  completed,  the  court 
should  make  an  order  for  the  payment  of  debts  as  in 
other  cases.  If  the  estate  is  solvent,  and  there  are 
sufficient  assets  within  the  state  which  can  be  used  for 
that  purpose,  the  local  debts  should  be  paid  in  full 
from  the  local  assets.45  If  there  are  not  sufficient  as- 
sets to  pay  the  debts  in  full,  they  may  be  paid  pro  rata, 
and  the  creditor  would  be  obliged  to  prove  the  bal- 
ance due  in  the  forum  of  the  home  personal  repre- 
sentative. If  the  estate  is  insolvent,  the  law  does  not 
permit  the  creditors  in  one  state  to  be  paid  in  full, 
while  those  in  another,  simply  because  of  their  resi- 
dence, receive  only  a  small  dividend  on  their  demands. 
The  ancillary  administrator  should  distribute  the 
funds  of 'the  estate  in  his  possession  among  the  credi- 
tors residing  in  this  state  pro  rata,  having  regard  to 
all  the  assets  and  the  whole  aggregate  amount  of  debt 
here  and  abroad,  and  remit  the  surplus,  if  any,  to  the 
principal  administrator.46  This  cannot  be  done  until 
the  amount  which  can  be  applied  on  debts  in  the  home 
jurisdiction  has  been  ascertained,  and  the  claims  filed 
in  that  forum  allowed.  The  ancillary  administrator 

43  Strauss  v.  Phillips,  189  111.  9,  59  N.  E.  560. 

44  Morton  v.  Hatch,  54  Mo.  498;  Fellows  v.  Lewis,  65  Ala.  343. 

45  Normand's  Admr.  v.  Grognard,  17  N.  J.  Eq.  425;  Davis  v.  Estey, 
8  Pick.  (Mass.)  475. 

46  Dawes  v.  Head,  3  Pick.    (Mass.)    128;   Davis  v.  Estey,  8  Pick. 
(Mass.)  475;  Normand's  Admr.  v.  Grognard,  17  N.  J.  Eq.  425. 

(414) 


Chap.  23]  ANCILLARY    ADMINISTRATION.  §  269 

should  obtain  from  the  court  which  appointed  the 
home  administrator  certified  copies  of  the  records 
showing  the  above  facts,  and  from  them  and  the  order 
allowing  claims  and  account  showing  assets  on  hand 
in  the  probate  court  of  this  state  the  judge  can  make 
a  decree  for  payment  of  debts. 

The  priorities  of  the  different  classes  of  creditors  is 
the  same  as  in  ordinary  cases  of  administration.47 

Form  No.  133. 

DECREE    FOR    PAYMENT    OF    DEBTS— ANCILLARY    ADMINIS- 
TRATION—ESTATE INSOLVENT. 

[Follow  Form  No.  141  to  *,  then  say:]     It  appearing  from  the  rec- 
ords and  files  of  this  estate,  in  the  probate  court  of  the  county  of 


and   commonwealth  of  ,  that  the  assets  of  said   estate 

in  the  said  state  of  are  the  sum  of  dollars,  and  that 

the  debts  allowed  against  said  estate  in  said  probate  court  of  said 

county  amount  to  the  sum   of  dollars;   that  the  total 

assets  of  said  estate  in  the  states  of  Nebraska  and  amount 

to    the   sum   of   dollars,   and   the   debts   allowed   against   said 

estate  in  said  states  amount  to  the  sum  of  dollars,  and  that 

said  total  assets  are  insufficient  to  pay  said  debts  in  full,  and  that 
the   expenses   of   administration    in   this    state    and   in   said   state   of 
,  amounting  to  the  sum  of  dollars,  have  not  been  in- 
cluded  in   the   foregoing  findings   of  the   amounts  of  the  assets  and 
liabilities  of  said  estate,  and  are  in  the  hands  of  the  administrators 
of  said  estate  in  and  Nebraska: 

It  is  therefore  ordered  and  adjudged  that  said  C.  D.,  administrator, 

from  said  sum  of dollars  so  in  his  hands  as  aforesaid,  pay  said 

creditors   whose   claims  have  been   allowed  in  this  court  the   sum   of 

• cents  on  the  dollar  of  the  amount  of  their  respective  claims  as 

of  date  of  their  allowance,  that  being  their  pro  rata  share  of  said 
assets,  having  regard  to  all  the  assets  and  the  whole  aggregate  amount 
of  the  debt  of  said  estate,  both  in  the  state  of  Nebraska  and  the  state 

of   ,   and    that   he    remit   the    balance    then    remaining    in   his 

hands  to  E.  F.,  executor  of  said  estate,  in  the  county  of  and 

commonwealth  of . 

(Signed)     J.  K., 

County  Judge. 

*7  Goodall  v.  Marshall,  11  N.  H.  88. 

(415) 


§  270  PROBATE   AND    ADMINISTRATION.  [Chap.  23 

If  the  assets  in  this  state  are  insufficient  to  pay  the 
local  debts,  or  their  pro  rata  share  if  the  estate  is  in- 
solvent, the  creditors  then  have  a  right  to  payment 
of  such  balances  from  the  assets  in  the  home  state,  and 
must  prove  their  claims  for  the  same.48 

§  270.    Accounting  by  ancillary  administrator. 

The  accounting  by  the  ancillary  administrator  is 
wholly  independent  of  that  of  the  domiciliary  repre- 
sentative. If  the  same  person  represents  the  estate 
in  both  jurisdictions,  he  must  keep  entirely  separate 
and  distinct  accounts,  the  same  as  though  he  had 
charge  of  two  different  estates.  He  cannot  use  assets 
from  the  ancillary  jurisdiction  in  payment  of  costs, 
debts  and  expenses  incurred  in  the  home  jurisdiction 
until  the  ancillary  administration  has  been  completed.49 

When  he  represents  the  estate  in  both  jurisdictions, 
he  is  not  chargeable  in  the  ancillary  jurisdiction  with 
assets  of  the  estate  which  he  collected  in  a  third  state, 
being  accountable  only  for  what  he  received  in  this 
state.50  He  is  entitled  to  attorney  fees,  costs  and  ex- 
penses incurred  in  good  faith  the  same  as  in  other 
cases.51 

He  is  accountable  for  all  his  acts  as  such  adminis- 
trator to  the  court  which  granted  him  his  letters  and 
none  other.  The  home  administrator  may  file  objec- 
tions to  the  account,  but  when  allowed  in  the  ancillary 

48  Kamsay  v.  Kamsay,  196  111.  179,  63  N.  E.  618. 

49  Aspden  v.  Nixon,  4  How.  (U.  S.)  467;  Jennison  v.  Hapgood,  10 
Pick.  (Mass.)  77. 

50  Tunnicliff  v.  Fox,  68  Neb.  811,  94  N.  W.  1032. 

51  Benjamin  v.  Bush,  89  Neb.  334,  131  N.  W.  602. 

(416) 


Chap.  23]  ANCILLARY    ADMINISTRATION.  §  271 

forum  it  is  final  and  cannot  be  reviewed  except  in  case 
of  lack  of  jurisdiction.52 

§  271.    Disposition  of  surplus  after  paying  debts. 

Ancillary  administrators,  and  domiciliary  adminis- 
trators or  executors  in  the  home  state,  are  so  com- 
pletely independent  of  each  other  that  the  assets  of 
the  estate  received  by  one  in  his  jurisdiction  cannot 
be  sued  for,  nor  their  transfer  compelled  by  the  other. 
Ancillary  assets  can  only  be  disposed  of  pursuant  to 
the  decree  of  the  court  from  which  the  letters  issued.53 
A  decree  of  the  court  for  that  purpose  should  be 
obtained  as  soon  as  possible. 

In  the  case  of  testate  estates  it  is  the  duty  of  the 
administrator  with  the  will  annexed  to  dispose  of  the 
same  according  to  such  will,  as  far  as  such  will  may 
operate  upon  it,  and  the  residue  as  is  provided  by  law 
in  cases  of  estates  in  this  state  belonging  to  persons 
inhabitant  of  any  other  state  or  country.  Specific  and 
demonstrative  legacies  would  therefore  be  paid  by  the 
local  representative,  and  the  balance  transmitted  to  the 
domiciliary  representative.54 

In  the  case  of  intestate  estates  there  is  some  differ- 
ence of  authority  as  to  by  whom  the  surplus  is  to  be 
divided.  It  is  elementary  that  it  is  distributed  among 
the  heirs  according  to  the  laws  of  decedent's  domicile. 
The  question  is,  Who  is  the  proper  party  to  make  the 

52  Baldwin's  Appeal,  81  Pa.  441;   Clark  v.  Blaekington,  110  Mass. 
369. 

53  Taylor  v.  Barron,  35  N.  H.  484;  Hill  v.  Tucker,  13  How.  (U.  S.) 
458;  McGraw  v.  Irwin,  87  Pa.  139;  McCord  v.  Thompson,  92  Ind.  565; 
Dawes  v.  Boylston,  9  Mass.  337. 

M  Bev.  Stats.,  c.  17,  §  46,  [1310]. 

27 — Pro.  Ad.  (417) 


§  271  PROBATE   AND   ADMINISTRATION".  [Chap.  23 

distribution?  Some  courts  hold  that  the  court  which 
granted  the  letters  has  power  to  determine  who  such 
parties  are  and  their  shares  and  order  payment  to 
them,55  while  others,  on  account  of  the  rule  that  the 
personal  property  of  an  intestate,  wherever  the  same 
may  be  situated,  is  regarded  as  having  no  other  loca- 
tion than  that  of  his  domicile,  hold  that  such  residue 
should  be  transmitted  to  the  domiciliary  representa- 
tive;56 others  that  it  is  a  matter  within  the  discretion 
of  the  court.57 

In  both  testate  and  intestate  estates,  if  it  appears 
that  there  are  unpaid  debts  in  the  home  jurisdiction, 
the  residue  should  be  transmitted  to  the  executor  or 
administrator.58  The  practice  in  this  state  is  not 
uniform. 

The  petition  for  distribution  may  be  made  when  the 
final  account  is  filed,  or  one  made  thereafter.  Notice 
to  all  persons  interested  must  be  given  as  in  other 
administration  cases. 

Form  No.  134. 

PETITION    FOR     ORDER    FOR    PAYMENT     OF     RESIDUE     OP 

ESTATE. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  administrator  of  said  estate,  respectfully 
represents  unto  the  court  that  all  proceedings  required  by  law  have 
been  had  for  the  proper  filing,  examination,  adjustment  and  allowance 
of  claims  against  said  estate;  that  all  claims  allowed  have  been  paid 

65  In  re  Hughes,  95  N.  Y.  55;  Lawrence  v.  Kittredge,  21  Conn.  577. 

56  Mackey  v.  Cox,  IS  How.  (U.  S.)  100;  Ordroneaux  v.  Helie,  3 
Sand.  Ch.  (N.  Y.)  512;  Putnam  v.  Pitney,  45  Minn.  242,  47  N.  W.  490; 
Hutton  v.  Hutton,  40  N.  J.  Eq.  461,  2  Atl.  280;  Wilkins  v.  Ellett,  9 
Wall.  (U.  S.)  740;  Low  v.  Bartlett,  8  Allen  (Mass.),  259. 

67  Fretwell  v.  McLemore,  52  Ala.   124. 

68  Fretwell  v.  MeLemore,  52  Ala.  124. 

(418) 


Chap.  23]  ANCILLARY    ADMINISTRATION".  §  271 

in  full;  that  on  the  day  of  ,  19 — ,  your  petitioner  sub- 
mitted his  final  account  of  his  administration,  which  said  account  was  on 

the day   of  ,   19 — ,  after  due  notice  given  as  required 

by  law,  approved;  that  there  remains  in  the  possession  of  said  peti- 
tioner the  sum  of  $ to  be  distributed  among  the  heirs  of  said 

A.  B.  according  to  the  laws  of  the  state  of ;  that  E.  F.,  of  the 

city  of  ,  in  the  county  of ,  state  of  —  —  is  the  admin- 
istrator of  said  estate  in  said  state  of  ;  that  none  of  the  per- 
sons claiming  to  be  distributees  of  said  estate  are  residents  of  the 
state  of  Nebraska  and  all  of  them  reside  in  said  state  of  . 

Your  petitioner  therefore  prays  that  a  time  and  place  be  fixed  for 
hearing  on  said  petition,  that  notice  thereof  be  given  to  all  persons 
interested  as  by  law  provided,  and  that  on  said  hearing  a  decree  of 
said  couit  be  made  and  entered  assigning  said  residue  to  said  E.  F. 
as  administrator  of  the  estate  of  said  A.  B. 

Dated  this  day  of ,  19 — . 

(Signed)     C.  D. 

[Add  verification.] 

Form  No.  135. 
DECREE  OF  DISTRIBUTION  OF  ANCILLARY  ESTATE. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  upon  the  petition  of  C.  D.  [the  answer  of  G.  H.]  and  the  evi- 
dence, and  was  submitted  to  the  court.  Upon  consideration  whereof 
the  court  finds  that  all  the  debts,  claims,  and  demands  against  said 
estate  have  been  fully  paid  and  satisfied,  and  there  remains  a  residue 

in  the  hands  of  the  administrator  of  the  sum  of  dollars;  that 

said  A.  B.  was,  during  his  lifetime,  a  resident  of  the  state  of  , 

and  that  E.  F.,  of  the  city  of ,  in  said  state,  is  the  administrator 

of  said  estate  in  said  state  of . 

It  is  therefore  ordered  that  said  residue  of dollars,  after  ths 

paying  the  costs  of  these  proceedings,  be  paid  to  the  said  E.  F.,  as 
such  administrator  of  the  estate  of  A.  B.,  deceased,  in  the  state  of 

• ,  and  that  on  filing  his  receipt  therefor  he  be  discharged. 

(Signed)     J.  K., 
County  Judge. 

(419) 


CHAPTER  XXIV. 

ALLOWING  CLAIMS  AGAINST  THE  ESTATE. 

§  272.     Creditor's  Interest  in  the  Estate  of  a  Decedent. 
273.     Power  of  County  Judge  to  Allow  Claims. 
273a.  Presentation  of  Claims  to  Representative. 
273b.  Duty  of  Representative. 
273c.  Special  Proceedings  Against  Estate. 
273d.  Suit  Against  Representative. 
274..   Time  and  Place  for  Hearing  Claims. 

275.  Notice  to  Creditors. 

276.  Claims  Which  Need  not  be  Filed. 

277.  Claims  Which  Need  not  be  Filed— Concluded. 

278.  Property  Held  by  a  Trustee. 

279.  Statute  of  Limitations. 

280.  The  Statutes  of  Nonclaim. 

281.  The  Two  Years'  Limitation. 

282.  Proving  Claims. 

283.  Proving  Claims — Concluded. 

284.  Funeral  Expenses. 

285.  Funeral  Expenses — Concluded. 

286.  Claims  Against  an  Estate — Accrued  Demands. 

287.  Claims  Becoming  Due  After  Death. 

288.  Express  Contracts  to  Pay  for  Services  Rendered. 

289.  Implied  Contracts  to  Pay  for  Services  Rendered. 

290.  Implied  Contract  to  Pay  for  Services  Rendered — Concluded. 

291.  Conversations  and  Transactions  With  Decedent. 

292.  Competency  of  Adverse  Party. 

293.  Adverse  Party. 

291.     Waiver  of  Objections. 

295.  Declarations  and  Admissions  to  Third  Party  in  Presence  o£ 

Claimant. 

296.  Claims  for  Breach  of  Covenants. 

297.  Claims  Due  Nonresidents. 

298.  Joint  Claims. 

299.  Executor's  or  Administrator's  Claims. 

300.  Contingent  Claims. 

301.  Contingent  Claims  Becoming  Absolute. 

302.  Contract  to  Bequeath  or  Devise  Property. 
C03.  Consideration  of  Contract. 

(420) 


Chap.  24]  PROVING  CLAIMS.  §  272 

304.  Eelief  Granted. 

305.  Writings  of  Deceased  Persons  as  Evidence. 

306.  Extending  Time  for  Presentation  of  Claims. 

307.  Order  Extending  Time  for  Filing  Claims. 
38.  Order  Allowing  Claims. 

§  272.    Creditor's  interest  in  the  estate  of  decedent. 

The  creditors  of  a  decedent  have  a  lien,  to  the  extent 
of  their  claims  and  demands,  upon  all  assets  of  the 
estate,  except  such  as  pass  absolutely  to  the  surviving 
spouse  and  children,  subject  only  to  the  homestead 
rights  and  the  statutory  allowances  for  support.  The 
law  takes  such  assets  into  its  possession  and  control 
through  the  medium  of  its  duly  appointed  and  qual- 
ified agent,  executor  or  administrator  as  the  case  may 
be,  and  holds  them  for  the  creditors  until  the  rights 
of  all  persons  to  whom  the  estate  is  indebted  and  the 
value  of  the  estate  are  ascertained.  While  it  is  neces- 
sary for  them  to  establish  the  validity  of  their  de- 
mands, it  is  not  necessary  for  them  to  bring  any  action 
to  subject  the  assets  to  the  payment  of  their  debts. 
Such  assets  are  already  in  the  hands  of  an  officer  of 
the  law,  whose  duty  to  pay  them  over,  or  to  satisfy  all 
demands,  either  in  whole  or  in  part,  as  the  estate  is 
solvent  or  insolvent,  can  be  enforced.1 

Creditors  of  the  same  class  stand  upon  an  equal  foot- 
ing. The  diligent  creditor,  unless  he  has  previously 
acquired  a  lien  on  some  part  of  the  assets,  fares  the 
same  as  the  dilatory  one  whose  claim  is  filed  the  last 
day  given  in  the  notice.  One  demand  has  no  prefer- 
ence over  another  except  it  be  given  by  statute.2  The 

1  MiPlintock's  Appeal,  29  Pa.  361. 

2  In  re  OsUun's  Estate,  36  Or.  8,  58  Pac.  521;  Colton  v.  Field,  131 
111.  398,  22  X.  E.  545. 

(421) 


§§  273,  273a     PBOBATE  AND  ADMINISTRATION.      [Chap.  24 

interest  of  creditors  of  the  estate  is  exclusive  and  su- 
perior to  the  liens  of  creditors  of  heirs,  devisees  or 
legatees,  upon  real  estate  for  their  demands.3 

§  273.    Power  of  county  judge  to  allow  claims. 

Under  the  Nebraska  practice  all  claims  against  an 
estate  must  be  filed  in  the  county  court  of  the  county 
out  of  and  under  whose  seal  letters  testamentary  or  of 
administration  issued,  which  court  has  original  juris- 
diction of  the  examination,  adjustment  and  allowance 
of  all  lawful  claims  and  demands  of  all  persons  against 
the  deceased,4  including  those  payable  at  a  future  date 
and  those  payable  in  specific  articles,5  and  if  the 
executor  or  administrator  files  a  setoff  against  any 
claim,  no  matter  how  payable,  to  ascertain  and  allow 
the  balance  in  favor  of  or  against  the  estate.6  His 
jurisdiction  extends  to  unliquidated  demands,7  and 
equitable  demands  for  money  due  where  the  right  and 
extent  of  the  recovery  is  easily  ascertained.8 

§  273a.    Presentation  of  claims  to  representative. 

Under  the  Oregon  practice,  neither  the  county  court 
nor  the  judge  thereof  has  original  jurisdiction  to  pass 
upon  claims  against  the  estate,  excepting  only  those 

3  Bruch  v.  Lantz,  2  Eawle  (Pa.),  392;  Morris  v.  Mowatt,  2  Paige 
(N.  Y.),  586. 

4  Rev.  Stats.,  c.  17,  §  118,  [1382] ;  Craig  v.  Anderson,  3  Neb.  Unof. 
638,  92  N.  W.  640. 

5  Rev.  Stats.,  c.  17,  §  124,   [1388], 

6  Rev.  Stats.,  c.  17,  §  123,  [1387]. 

7  Dubuch  v.  Wildermuth,  3  La.  Ann.  407. 

8  Palmer  v.  Green,  6  Conn.  19;  Collins  v.  Tillouse's  Admr.,  26  Conn. 
313;  Shelton  v.  Hadlock,  62  Conn.  143,  25  Atl.  483;  Dixon  v.  Buel,  21 
111.  203;  Spaulding  v.  Warner's  Estate,  52  Vt.  29. 

(422) 


Chap.  24]  PROVING  CLAIMS.  §  273a 

due  the  executor  or  administrator.  All  other  demands 
are  required  to  be  presented  to  the  personal  representa- 
tive with  proper  vouchers,  excepting  only  those  on 
which  actions  are  pending  against  decedent  at  the  time 
of  his  death,  and  which  may  be  revived  against  his 
estate,  or  where  equitable  relief  is  sought. 

They  should  be  itemized  and  verified  by  the  affidavit 
of  the  claimant,  or  someone  in  his  behalf,  having  per- 
sonal knowledge  of  the  fact,  to  the  effect  that  the 
claim  is  justly  due,  that  no  payments  have  been  made 
thereon,  except  as  stated,  and  that  there  is  no  just 
counterclaim  to  the  same  to  the  knowledge  of  the  affi- 
ant.9 The  demand  must  be  set  out  with  sufficient  par- 
ticularity to  show  the  existence  of  a  liability  against 
the  estate,  but  the  formalities  demanded  of  a  pleading 
in  action  are  not  necessary.10 

They  are  deemed  presented  when  proffered  to  the 
executor  or  administrator,  and  left  in  his  possession 
a  reasonable  length  of  time  for  him  to  examine  into 
their  merits  and  determine  their  validity.11  What  is 
such  time  is  a  question  for  the  court  to  determine  from 
all  the  facts  and  circumstances  connected  with  the 
matter.12  He  is  given  no  power  to  summon  witnesses 
or  take  testimony.  If  it  appears  or  is  alleged  that 
there  is  any  written  evidence  of  such  claim,  the  same 
may  be  demanded  by  him,  or  its  nonproduction 
accounted  for.13 

He  must  either  allow  or  reject  all  claims  presented. 
His  neglect  to  act  within  a  reasonable  time  is  equiva- 
lent to  rejecting  the  demand.14 

»  L.  O.  L.,  §  1240;  In  re  Lucke's  Estate,  64  Or.  320,  123  Pac.  47. 

10  Goltra  v.  Penland,  42  Or.  18,  69  Pac.  925. 

11  Willis  v.  Marks,  29  Or.  493,  45  Pac.  293. 

12  Goltra  v.  Penland,  supra. 

13  L.  O.  L.,   §  1240. 

W  Goltra  v.  Penland,  supra. 

(423) 


§  273b  PROBATE   AND   ADMINISTRATION.  [Chap.  24 

§  273b.    Duty  of  representative. 

A  claim  rejected  or  held  by  him  an  unreasonable 
length  of  time  must  be  delivered  to  the  claimant  on 
demand,  and  replevin  will  lie  for  its  recovery  if  such 
demand  is  refused.15  If  satisfied  that  the  claim  is  just, 
he  must  indorse  upon  it  the  words,  "Examined  and 
approved,"  with  the  date  thereof,  and  sign  his  name 
officially.  If  not  so  satisfied,  he  must  indorse  it 
"Examined  and  rejected,"  with  the  date  and  his 
signature.16 

His  duties  in  passing  on  claims  are  not  judicial,  but 
more  in  the  nature  of  those  of  an  auditor.  His  ap- 
proval is  not  even  prima  facie  evidence  of  its  validity, 
if  objected  to  on  the  final  hearing.17  An  unverified 
claim  cannot  be  legally  presented,18  and  if  it  is  rejected 
for  indefiniteness  or  irregularity  in  setting  out  the  de- 
mand, or  for  any  technical  reason,  and  he  wishes  to 
raise  the  question  of  its  legal  presentation,  he  should 
note  on  it  the  reasons  for  his  rejection.19 

Claims  may  be  presented  at  any  time  between  the 
dates  of  the  qualification  and  discharge  of  the  executor 
or  administrator.20 

He  is  required  to  keep  a  list  of  all  claims  legally 
exhibited  against  the  estate,  and  every  three  months 
file  with  the  county  court  a  statement  of  all  such  claims 
as  may  have  been  presented,  and  whether  the  same 
have  been  allowed  or  rejected  by  him.21 

15  Willis  v.  Marks,  29  Or.  498,  45  Pac.  293. 

16  L.  O.  L.,  §  1241.    • 

17  In  re  Chambers'  Estate,  38  Or.  131,  62  Pac.  1013;  Irvine  v.  Beck, 
62  Or.  596,  125  Pac.  832. 

18  Zachary  v.  Chambers,  1  Or.  321. 

19  Aikin  v.  Coolidge,  12  Or.  244,  6  Pae.  712. 

20  L.  O.  L.,  §§  387,  1239;  In  re  Murray's  Estate,  56  Or.  138,  107  Pac. 
19. 

21  L.  O.  L.,  §  1241. 

(424) 


Chap.  24]  PROVING  CLAIMS.  §  273b 

Form  No.  135a — Oregon. 

VERIFICATION   OF   CLAIM. 

State  of  Oregon, 


County  of , — ss. 

C.  D.,  being  first  duly  sworn,  on  oath  says  that  the  foregoing  state- 
ment of  his  claim  against  the  estate  of  A.  B.,  late  of  said  county,  de- 
ceased, is  just  and  correct,  and  that  the  amount  of  $ is  justly 

d-ie  thereon;  that  no  payments  have  been  made  thereon,  except  as 
above  set  forth;  that  there  is  no  just  counterclaim  to  the  same  to  the 
knowledge  of  affiant;  that  affiant  is  the  owner  of  said  claim  and  has 
personal  knowledge  of  the  facts  herein  set  forth. 

(Signed)     C.  D. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — . 

(Signed)     G.  H., 
Notary  Public. 

Form   No.   I35b — Oregon. 
CLAIM  ON  A  PROMISSORY  NOTE. 

Estate  of  A.  B.,  C.  D.,  Executor,  in  Account  with  E.  F. 
19— 

.     To  balance  on  note , 

To  interest  at %  from  to 

Total  .  , 


State  of  Oregon, 

County  of , — ss. 

E.  F.,  being  first  duly  sworn,  on  oath  says  that  heretofore,  to  wit, 

,  19 — ,  A.  B.  executed  and  delivered  to  affiant  his  promissory 

note  in  words  and  figures  following  [copy  of  note  and  indorsements]; 
that  no  payments  have  been  made  hereon  except  such  as  have  been 
indorsed  upon  said  note;  that  the  foregoing  statement  of  the  amount 
due  affiant  from  the  estate  of  A.  B.,  late  of  said  county,  deceased,  is 
just  and  correct;  that  there  is  no  just  counterclaim  to  the  knowledge 
of  this  affiant,  that  affiant  is  the  owner  of  said  demand,  and  has  per- 
sonal knowledge  of  the  facts  herein  set  forth. 

(Signed)     E.  F. 

Subscribed  and  sworn  to  before  me  this  day  of ,  19 — . 

(Signed)     G.  H., 
Notary  Public. 

(425) 


§  273C  PROBATE    AND    ADMINISTRATION.  [Chap.  24: 

§  273c.    Special  proceedings  against  estate. 

If  the  executor  or  administrator  reject  the  claim, 
two  remedies  are  afforded  the  claimant:  he  may  either 
bring  suit  against  such  representative,22  or  he  may  pre- 
sent his  claim  to  the  county  court  for  allowance,  giv- 
ing the  executor  or  administrator  ten  days'  notice  of 
the  application.  The  court  thus  acquires  jurisdiction 
to  hear  and  determine  in  a  summary  manner  all  such 
rejected  claims.  The  decision  of  the  court  thereon  has 
the  force  and  effect  of  a  judgment,  from  which  an 
appeal  can  be  taken  as  in  ordinary  cases.23  The  pro- 
ceeding may  be  brought  by  his  assignee.24 

Formal  pleadings  are  unnecessary.  The  claim 
proved  must  be  identical  with  that  presented  to  the 
administrator.  If  he  presents  a  claim  on  a  quantum 
meruit,  evidence  of  an  express  contract  is  inadmissible; 
he  cannot  amend  by  substituting  a  different  cause  of 
action.25  The  proceedings  are  of  an  equitable  rather 
than  a  legal  character,26  with  the  object  of  furnishing 
a  speedy  and  efficient  remedy  untrammeled  by  techni- 
cal pleadings.  The  burden  of  proof  is  on  the  claimant, 
and  he  must  show  that  the  claim  has  been  legally  pre- 
sented to  the  executor  or  administrator  and  rejected 
by  him,  and  that  it  is  a  just  demand  against  the  estate 
and  unpaid.  These  latter  facts  must  be  established 
by  other  evidence  than  that  of  the  claimant.27  The 
claimant  is  not  an  incompetent  witness,  but  his  testi- 
mony must  be  corroborated  by  that  of  other  witnesses, 
or  other  evidence  which  must  be  sufficient  to  establish 
the  indebtedness  of  the  estate  to  him.28 

22  Pruitt  v.  Muldrick,  39  Or.  355,  65  Pae.  20. 

23  L.  O.  L.,  §  1241. 

24  In  re  Morgan's  Estate,  46  Or.  242,  78  Pac.  1029. 

25  Wilkes  v.  Cornelius,  21  Or.  352,  28  Pae.  135. 

26  In  re  Morgan's  Estate,  46  Or.  235,  77  Pac.  608,  78  Pac.  1029. 

27  Goltra  v.  Penland,  45  Or.  261,  77  Pac.  129;  L.  O.  L.,  §  1241;  Irvine 
v.  Beck,  62  Or.  596,  125  Pac.  834. 

28  Bull  v.  Payne,  47  Or.  581,  84  Pac.  697;  Quinn  v.  Gross,  24  Or.  150, 
33  Pac.  525;  Harding  v.  Grim,  25  Or.  596,  36  Pac.  634. 

(426) 


Chap.  24]  PROVING  CLAIMS.  §  273d 

Form  No.  135c — Oregon. 
NOTICE  OF  FILING  CLAIM. 

[Title  of  Cause  and  Court.] 

To  C.  D.,  Administrator  of  the  Estate  of  A.  B.,  Deceased: 

You  are  hereby  notified  that  on  the  day  of  ,  19 —  at 

the  hour  of  10  A.  M.  of  said  day,  or  as  soon  thereafter  as  counsel  can 
be  heard,  I  will  make  application  to  said  court  for  the  allowance  of 

a  certain  claim  held  by  me  against  said  estate  in  the  sum  of  $ , 

which   claim  was  by  me  presented  to  you  as  such  administrator  for 

allowance  on  the  day  of ,  19 — ,  and  by  you  indorsed  as 

''examined  and  rejected"  on  the day  of ,  19 — . 

Dated  this day  of ,  19—. 

(Signed)     E.  F. 

§  273d.    Suit  against  the  representative. 

Any  person  having  a  demand  against  an  estate 
which  has  been  presented  to  the  executor  or  adminis- 
trator and  rejected,  or  if  no  action  has  been  taken  by 
him  thereon  has  been  held  by  him  a  reasonable  time, 
fixed  by  the  court  at  not  more  than  six  months,29  may 
at  any  time  before  the  final  settlement  and  discharge 
of  the  executor  or  administrator,  but  not  less  than  six 
months  from  the  date  of  letters,  bring  an  action  against 
him  thereon.30  The  action  must  be  brought  within  the 
period  of  the  general  statute  of  limitations,  but  the 
time  elapsing  between  the  delivery  of  the  demand  to 
the  representative  and  its  rejection,  or  a  reasonable 
time  after  its  delivery  when  he  neglected  to  take  any 
action  on  it,  cannot  be  included.  During  such  periods 
the  statute  as  suspended.31 

The  complaint  must  show  that  the  letters  were 
granted  six  months  before  the  suit  was  brought.32 

29  Goltra  v.  Penland,  45  Or.  263,  77  Pac.  129. 

30  L.  0.  L.,  §§  386,  387;  Blaskower  v.  Steel,  23  Or.  198,  31  Pac.  252; 
Pruitt  v.  Muldrick,  39  Or.  355,  65  Pac.  20;  Goltra  v.  Penland,  45  Or. 
259,  77  Pac.  129;  In  re  Morgan's  Estate,  46  Or.  235,  78  Pac.  1029. 

31  In  re  Morgan's  Estate,  46  Or.  235,  77  Pac.  608,  78  Pac.  1029. 

32  Wells  v.  Applegate,  10  Or.  526;  Aiken  v.  Coolidge,  12 'Or.  284,  6 
Pac.  712. 

(427) 


§  274.  PROBATE    AND    ADMINISTRATION.  [Chap.  24 

If  the  executor  or  administrator  doubt  the  validity 
of  any  claim  presented  to  him,  he  may  agree  in  writ- 
ing with  the  claimant  that  an  order  of  reference  be 
made  by  the  court  or  judge  thereof  concerning  the 
same.  The  referee  has  authority  to  hear  and  deter- 
mine the  matter  and  report  to  the  court,  in  the  same 
manner  and  with  like  effect,  as  if  the  order  was  made 
in  an  action  or  suit  upon  the  claim.33 

Form  No.  135d — Oregon. 
AGREEMENT  FOR  REFERENCE  OF  CLAIM. 

Whereas,  E.  F.,  has  presented  to  C.  D.,  administrator  of  the  estate 
of  A.  B.,  a  claim  against  said  estate  in  the  sum  of  $ —  — ,  and  said 
administrator  has  doubt  of  the  validity  of  said  claim; 

It  is  hereby  stipulated  and  agreed  by  and  between  said  E.  F.  and 
said  C.  D.,  administrator  as  aforesaid,  that  an  order  be  made  and 

entered  by  the  county  court  of  county,  Oregon,  appointing  a 

referee  to  hear  and  determine  said  claim,  and  to  make  and  file  his 
report  and  findings  thereon  in  the  same  manner  as  if  said  order  of 
reference  was  made  by  said  court  in  an  action  or  suit  on  said  claim. 

Dated  this  day  of ,  19—. 

(Signed)     E.  F., 
O.D., 
Administrator  of  the  Estate  of  A.  B.,  Deceased. 

§  274.    Times  and  place  for  hearing  claims. 

It  is  the  duty  of  the  county  judge,  within  sixty  days 
from  the  grant  of  letters  testamentary  or  of  adminis- 
tration, to  make  an  order  fixing  the  time  for  filing 
claims  and  dates  for  hearings  thereon.  The  time 
allowed  should  not  be  less  than  six  nor  more  than 
eighteen  months,  as  the  circumstances  may  require.34 
A  like  order  should  be  made  when  a  special  adminis- 

33  L.  O.  L.,  §§  1244,  1245. 

34  Rev.  Stats.,  c.  17,  §§  118,  120,  [1382],  [1384];  Dredla  v.  Bache,  60 
Neb.  655,  83  N.  W.  916. 

(428) 


Chap.  24]  PROVING  CLAIMS.  §  275 

trator  is  appointed  on  an  appeal  from  the  order  for 
letters.35 

The  usual  practice  is  to  make  it  a  part  of  the  ''gen- 
eral order,"36  and  to  fix  two  dates  for  hearings,  one 
about  thirty  days  from  its  date  and  the  other  a  few 
days  after  the  last  day  for  filing  claims.  It  must 
direct  how  notice  shall  be  given. 

§  275.    Notice  to  creditors. 

Notice  to  creditors  of  the  time  fixed  for  filing  claims 
and  dates  set  for  hearing  must  be  given  by  posting 
the  same  in  four  public  places  in  the  county,  or  by 
publication  in  a  legal  newspaper  in  said  county  for 
four  weeks,  or  in  any  manner  which  the  court  may 
direct.37  If  by  publication,  the  surviving  spouse  or  a 
majority  of  the  heirs,  devisees  or  legatees  of  lawful 
age  may  designate  the  paper.38  The  almost  universal 
practice  is  to  give  notice  by  publication.  Service  of 
the  notice  cannot  be  had  until  after  the  order  for  its 
issue  is  made  and  entered.39 

The  notice  is  not  solely  for  the  benefit  of  creditors, 
but  also  for  the  purpose  of  notifying  all  persons  inter- 
ested in  the  estate,  and  giving  them  an  opportunity  to' 
object  to  claims  which  they  think  not  a  proper  charge 
against  it.40 

The  statute  directing  such  notice  is  mandatory  and 
not  directory.  The  notice  must  comply  with  the 

35  Cadman  v.  Richards,  13  Neb.  383,  14  N.  W.  159. 

36  Section  182,  supra,  Form  No.  78. 

37  Rev.  Stats.,  c.  17,   §  118,   [1382]. 

38  Rev.  Stats.,  c.  17,  §  119,  [1383]. 

39  Kibble  v.  Furmin,  71  Neb.  108,  98  X.  W.  420. 
«0  Dredla  v.  Bache,  60  Xcb.  655,  83  N.  W.  916. 


§  275  PEOBATE   AND   ADMINISTRATION.  [Chap.  24 

order,  and  be  served  by  posting  or  publication,  or 
otherwise  in  such  manner  as  the  court  therein  directs. 
If  it  fails  to  comply  with  any  of  these  requirements, 
it  is  invalid,  and  not  a  bar  to  the  bona  fide  claims  of 
creditors.41 

Form  No.  136. 
NOTICE  TO  CREDITORS. 
[Title  of  Cause  and  Court.] 

Notice  to  all  persons  interested  in  said  estate  is  hereby  given  that 
C.  D.,  administrator  of  said  estate,  will  meet  the  creditors  of  said 

estate  at  the  county  courtroom  in  the  city  of  ,  said  county, 

on  the  day  of  ,  19 — ,  and  on  the  day  of  -      — , 

19 — ,  at  the  hour  of  9  A.  M.,  for  the  purpose  of  the  hearing,  adjust- 
ment and  allowance  of  claims  against  said  estate.  All  persons  having 
claims  or  demands  against  said  estate  must  file  the  same  in  said  court 

on  or  before  ,  19 — ,  or  said  claims  will  be  forever  barred. 

Dated ,  19—. 

(Seal)  (Signed)     J.  K., 

County  Judge. 

It  is  the  duty  of  an  executor  or  administrator,  im- 
mediately after  his  appointment,  to  publish  a  notice 
thereof,  in  some  newspaper  published  in  the  county, 
if  there  be  one,  or  otherwise,  in  such  paper  as  may  be 
designated  by  the  court  or  a  judge  thereof,  as  often 
as  once  a  week  for  four  successive  weeks,  and  oftener 
if  the  court  shall  so  direct.  Such  notice  shall  require 
all  persons  having  claims  against  the  estate  to  present 
them  to  him  with  proper  vouchers,  within  six  months 
from  the  date  of  such  notice,  at  a  place  in  the  county 
to  be  therein  specified.42  A  copy  of  the  notice  with 
proof  of  publication  of  the  same  must  be  filed  with  the 
clerk  of  the  court  before  the  expiration  of  the  six 
months.43  A  failure  to  file  the  proof  will  not  affect  the 

41  Ribble  v.  Furmin,  71  Neb.  108,  98  N.  W.  420;  Hawkins  v.  Riden- 
hour,  13  Mo.  125;  Lee  v.  Patrick,  31  N.  C.  135. 

42  L.  O.  L.,  §  1238. 

43  L.  O.  L.,  §  1239;  In  re  Murray's  Estate,  55  Or.  138,  107  Pac.  19. 

(430) 


Chap.  24]  PROVING  CLAIMS.  §  276 

decree  of  discharge,  provided  the  same  was  actually 
published.44  A  failure  to  publish  the  notice  is  cause 
for  removal.45 

Form  No.  I36a — Oregon. 
NOTICE  TO  CREDITORS. 

Notice  is  hereby  given  that  letters  of  administration  [testamentary], 

upon  the  estate  of  A.  B.,  late  of county,  Oregon,  deceased,  have 

been  issued  to  me  out  of  and  under  the  seal  of  the  county  court  of 
said  county.  All  persons  having  claims  against  said  estate  are  re- 
quired to  present  them,  with  the  proper  vouchers,  to  me  at  my  office 

No.  street,  in  the   city  of  ,  in  said  county  within  six 

months  from  the  date  of  this  notice. 

C.  D., 
Administrator  of  the  Estate  of  A.  B.,  Deceased. 

§  276.    Claims  which  need  not  be  filed. 

There  are  certain  classes  of  claims  against  the  estate 
of  a  decedent  which  are  not  required  to  be  formally 
filed  and  approved  by  the  county  court  before  being 
paid.  They  consist  of  those  on  which  an  action  is 
pending  at  the  time  of  decedent's  death,  or  on  which 
.a  judgment  has  been  entered  or  a  decree  obtained,  and 
those  secured  by  liens  on  specific  property,  either  real 
or  personal. 

A  claim  or  demand  on  which  an  action  is  pending 
against  a  decedent  and  which  survives,  and  may  be 
revived  with  the  executor  or  administrator  as  defend- 
ant, need  not  be  filed  nor  presented  to  the  representa- 
tive. The  judgment  obtained  thereon,  or  any  other 
judgment  against  him,  is  deemed  final  and  conclusive, 
and  binds  the  assets  of  the  estate  in  the  same  manner 
as  though  formally  filed  or  presented  and  allowed.48 

44  In  re  Conant's  Estate,  43  Or.  535,  73  Pac.  1018. 

45  In  re  Barnes'  Estate,  36  Or.  282,  59  Pac.  464. 

-*«  Harlin  7.  Stevenson,  30  Iowa,  317;  O'Donnell  v.  Herman,  42  Iowa,  60. 

(431) 


§276  PROBATE    AND    ADMINISTRATION.  [Chap.  24: 

All  such  judgments  should  be  certified  to  the  county- 
court.47 

Under  the  Oregon  practice,  the  holder  of  a  judgment 
obtained  against  decedent  in  his  lifetime  may  present 
a  certified  copy  of  the  judgment  to  the  executor  or 
administrator  as  in  other  cases  for  his  rejection  or 
allowance,  or  may  proceed  to  enforce  it  in  the  same 
manner  by  execution  and  levy  as  though  the  party  were 
living.43  The  lien  is  not  discharged  by  the  death  of  the 
party.  The  execution  may  issue  without  formal  pre- 
sentation of  the  claim  at  any  time  after  six  months. 
from  the  granting  of  letters  of  administration.49 

Any  lien  on  the  realty  or  personalty  of  a  decedent, 
obtained  previous  to  his  death  by  attachment,  judg- 
ment or  execution,  may  be  enforced  by  the  creditor 
in  the  same  manner  as  though  his  death  had  not 
occurred.50  If  the  writ  has  been  levied  and  the  prop- 
erty is  insufficient  to  satisfy  the  claim  in  full,  it  may 
be  filed  as  a  contingent  claim.51 

The  general  rule  is  that  the  holder  of  any  demand 
secured  by  a  specific  lien  on  either  real  or  personal 
property  has  the  same  remedy  for  the  collection  of 
his  demands  against  the  successors  in  title  that  he 
had  against  the  party  himself.  He  may  foreclose,  file 
it  and  recover  from  the  general  assets  of  the  estate,. 

47  Section  283,  post. 

48  L.  O.  L.,  §§  220,  1243. 

«  Knott  v.  Shaw,  5  Or.  484;  Barrett  v.  Furnish,  21  Or.  19,  26  Pac. 
281;  Bower  v.  Holladay,  28  Or.  491,  22  Pac.  553;  Watson  v.  Moore, 
40  Or.  206,  66  Pac.  814. 

60  Eev.  Stats.,  c.  17,  §  154,  [1418];  White  v.  Ladd,  34  Or.  422,  56- 
Pac.  515. 

51  Ansley  v.  Baker,  14  Tex.  600;  City  of  Carondelet  v.  Desnoyers" 
Admr.,  27  Mo.  36. 

(432) 


Chap.  24]  PROVING  CLAIMS.  §  276 

or  file  it  as  a  contingent  claim.  The  right  of  a  mort- 
gagee or  his  assigns  to  commence  a  suit  for  foreclosure 
and  prosecute  to  a  decree  and  sale  of  the  real  estate, 
after  the  death  of  the  mortgagor,  is  recognized  by  all 
courts.52  The  holder  of  a  mortgage  note  not  filed 
against  the  estate  cannot  resort  to  the  general  assets, 
should  his  security  prove  insufficient;53  nor  is  he 
obliged  to  first  exhaust  such  security  before  taking 
any  steps  to  reach  the  general  assets.  He  may  file  it 
as  a  contingent  claim.54 

The  holder  of  a  lien  under  a  verbal  contract,  or  of  a 
statutory  lien  when  a  continuance  of  possession  is 
necessary  to  maintain  it,  must  make  a  demand  on  the 
representative  before  bringing  any  suit  to  enforce  it.55 
A  judgment  rendered  against  an  executor  in  an  action 
revived  against  the  estate  does  not  become  a  lien  on 
the  real  estate  the  same  as  a  judgment  rendered  against 
the  decedent  in  his  lifetime.  Its  standing  is  the  same 
as  any  other  proved  demand  against  the  estate.56 
,  The  filing  of  a  note  and  mortgage  as  a  claim  against 
the  estate  does  not  release  the  lien  of  the  mortgage.57 
Whether  a  party  is  entitled  to  have  his  debt  against 
the  general  estate  of  a  deceased  mortgagor  allowed  in 

52  Xull  v.  Jones,  5  Neb.  500;  Jones  v.  Null,  9  Neb.  57,  1  N.  W.  867; 
National  Life  Ins.  Co.  v.  Fitzgerald,  61  Neb.  692,  85  N.  W.  948;  Ver- 
dier  v.  Bigne,   16  Or.  210,   19  Pac.  64;   Teel  v.  Winston,  22  Or.  491, 
29  Pac.  142;  Putnam  v.  Russell,  17  Vt.  54. 

53  Null  v.  Jones,  5  Neb.  500;  Teel  v.  Winston,  22  Or.  491,  29  Pac. 
142. 

54  Day  v.  Graham,  97  Mo.  398,  11  S.  W.  55. 

55  Elaine  v.  Truax,  58  Or.  582,  115  Pac.  567. 

56  Carter  v.  Penn,  79  Ga.  747,  4  S.  E.  896;  Vance  v.  Smith,  124  Cal. 
219.  56  Pac.  1031. 

f-7  National  Life  Ins.  Co.  v.  Fitzgerald,  61  Neb.  692,  85  N.  W.  948; 
Veidier  v.  Bigne,  16  Or.  210,  19  Pac.  64. 

28— Pro.  Ad.  (433) 


§  277  PROBATE   AND    ADMINISTRATION.  [Chap.  24 

the  county  court  while  his  foreclosure  action  is  pending 
is  doubtful. 
Chattel  mortgage  security  follows  the  same  rule. 


58 


§  277.    Claims  which  need  not  be  filed — Concluded. 

A  claim  secured  by  a  vendor's  lien  on  real  estate 
may  be  treated  either  as  an  interest  in  land  or  as  a 
mortgage,59  foreclosed  in  the  same  manner  at  any  time 
after  default,  and  would  therefore  follow  the  same  rule 
as  a  mortgage  in  regard  to  filing  and  allowance.60 

An  action  of  ejectment  is  one  to  be  determined  by 
the  district  court,  and  is  not  a  claim  against  the  estate 
within  the  authority  of  the  county  judge  to  consider, 
there  being  nothing  demanded  of  the  estate  except  the 
land  which  is  alleged  to  be  wrongfully  withheld.61 

A  bond  for  title  is  also  a  claim  for  land  only,  and 
need  not  be  filed.  The  remedy  of  the  holder  of  the 
bond  is  by  suit  in  equity  for  specific  performance,  or 
by  the  statutory  proceeding  to  enforce  a  conveyance.62 

A  claim  or  demand  of  a  municipality  for  past  due 
taxes  on  realty  or  personalty  need  not  be  filed.  The 
taxes  themselves  are  a  lien  on  the  premises,  and  the 
city  or  county  may  enforce  their  rights  by  the  usual 
proceedings  of  a  tax  sale.63 

68  Purdin  v.  Archer,  4  S.  D.  54,  54  N.  W.  1043. 

50  Hendrix  v.  Barker,  49  Neb.  369,  68  N.  W.  531;  Oakes  v.  Gillilan, 
1  Neb.  Unof.  893,  95  N.  W.  511. 

60  Jackson  v.  Phillips,  57  Neb.  189,  77  N.  W.  683;  Allen  v.  Smith,  29 
Neb.  74. 

61  Kerns  v.  Dean,  77  Cal.  555,  19  Pac.  317. 

«2  Gregory  v.  Hughes,  20  Tex.  345.     See  §  253,  supra. 
63  Gager  v.  Prout,  48  Ohio  St.  89,  26  N.  E.  1013;  People  v.  Olvera, 
43  Cal.  492. 

(434) 


Chap.  24]  PROVING  CLAIMS.  §  278 

The  liability  of  the  estate  of  a  decedent  to  the  credi- 
tor of  a  corporation  for  corporate  debts,  where  by 
statute  there  is  a  personal  liability  of  the  stockholders, 
is  not  a  proper  claim  to  be  presented  to  the  county 
judge  or  commissioners  for  allowance.  The  right  to 
collect  from  a  corporation  stockholder,  it  has  been 
held,  must  be  enforced  by  a  proceeding  to  which  all 
the  stockholders  and  others  interested  are  made  par- 
ties, so  that  the  rights  and  liabilities  of  all  may  be 
adjusted.  The  object  of  the  statute  is  to  create  a 
common  fund,  from  which  all  the  creditors  of  the  cor- 
poration may  be  paid,  either  in  whole  or  part.64  The 
amount  of  the  judgment  or  decree,  if  any,  should  be 
certified  to  the  county  court,  as  should  also  the  costs 
in  an  ejectment  case. 

§  278.    Property  held  by  a  trustee. 

For  the  recovery  of  property  which  was  held  by 
decedent  as  a  trustee,  two  remedies  exist.  The  parties 
may  establish  their  claim  by  bill  in  equity  to  impound 
the  fund,  when  it  can  be  traced,  and  have  it  declared 
a  trust  fund,  or  enforce  it  as  an  ordinary  claim  against 
the  estate  by  filing  it  in  the  county  court.65  In  either 
case,  if  the  trustee  was  appointed  by  the  court,  any 
claim  which  he  might  have  against  the  fund  must  be 
determined  by  the  court  appointing  him.66  If  the 
property  consists  of  shares  of  corporate  stock  or  other 
similar  personalty,  it  may  be  allowed  the  same  as 
claims  payable  in  specific  articles. 

04  In  re  Martin's  Estate,  56  Minn.  420,  57  N.  W.  1065;  Allen  v. 
Walsh.  25  Minn.  543. 

65  Robinson  v.  Tower,  95  Neb.  198,  145  N.  W.  348;  Hill  v.  State,  23 
Ark.  604;  Gunter  v.  James,  9  Cal.  643. 

«6  Robinson  v.  Tower,  95  Neb.  198,  145  N.  W.  348. 

(435) 


§  279  PROBATE   AND   ADMINISTRATION.  [Chap.  24 

In  Oregon,  only  the  remedy  afforded  by  an  action 
in  equity  to  impress  a  lien  on  the  trust  fund  exists.67 

§  279.    Statute  of  limitations. 

No  demand  barred  by  the  statute  of  limitations  can 
be  allowed  by  the  court  either  in  favor  of  or  against 
an  estate.68  It  was  formerly  the  rule  that  an  executor 
or  administrator  could  waive  the  statute  and  thus  per- 
mit a  creditor  to  enforce  a  demand  which  he  could  not 
have  enforced  against  the  creditor  at  the  time  of  his 
death.69  The  order  allowing  a  barred  claim  is  not 
subject  to  collateral  attack.70 

There  is  considerable  authority  to  the  effect  that 
the  death  of  a  debtor  interrupts  the  running  of  the 
statute.71 

The  larger  number  of  decisions  are  that  in  the  ab- 
sence of  a  statute  the  death  of  the  debtor  does  not  toll 
the  statute.72 

67  Dunham  v.  Siglin,  39  Or.  295,  64  Pac.  661. 

68  Rev.  Stats.,  c.  17,  §  123,  [1387];  L.  O.  L.,  §  279;  Bnisha  v.  Hawke, 
87  Neb.  254,  126  N.  W.  1079;   Vette  v.  Heinrichs,  93  Neb.  551,   141 
N.  W.  152. 

69  2   Kent,   Com.,   §416. 

70  Section  308,  post. 

71  McClintock's  Appeal,  29  Pa.  360;  Carrier's  Admr.  v.  Whitington's 
Admr.,  26  Mo.  311;  Nelson  v.  Herkel,  30  Kan.  456,  2  Pac.  110;  Bauser- 
man  v.  Charlott,  46  Kan.  480,  26  Pac.  1051,  143  U.  S.  647,  13  Sup.  Ct. 
Rep.  466.     These  cases  are  based  on  the  theory  that  during  the  period 
between  the  death  of  the  debtor  and  the  appointment  of  his  executor 
or  administrator   there   is   no   person   against  whom   the   creditor   can 
proceed;  that  a  creditor  can  compel  administration,  and  that,  unless 
he  neglects  to  do  so  within  a  reasonable  time,  the  time  between  the  death 
of  the  debtor  and  the  appointment  of  his  executor  or  administrator  should 
be  deducted.     In  many  states  it  is  a  statutory  rule. 

72  Baker  v.  Brown,  18  111.  91;  Dekay  v.  Darrah,  14  N.  J.  L.  288; 
Ni  ks  v.  Martindale,  Harp.   (S.  C.)    135,  18  Am.  Dec.  647;   Quivy  v. 
Hall.  19  Cal.  97. 

(436) 


Chap..  24]  PROVING  CLAIMS.  §  280 

The  question  has  never  been  passed  on  by  our 
supreme  court.  The  rule  adopted  in  Kansas  and  ap- 
proved on  appeal  in  the  United  States  supreme  court 
is  the  most  equitable  one. 

The  filing  of  a  claim  interrupts  the  running  of  the 
statute  in  the  same  manner  as  commencing  a  suit 
agairst  the  decedent  in  his  lifetime.  It  is  in  effect  the 
beginning  of  a  suit  against  his  estate.73 

The  statute  of  limitations  does  not  run  against  un- 
paid personal  taxes  due  from  decedent.  They  are  not 
" debts,"  in  the  usually  accepted  sense  of  the  term, 
but  a  charge  or  burden  imposed  upon  property  for  the 
benefit  of  the  public.74 

There  are  many  varieties  of  claims  against  an  estate 
which  do  not  become  due  until  after  the  death  of  the 
intestate, — such  as  demands  for  support  and  mainte- 
nance,— and  all  such  must  be  filed  within  the  time 
limited.75 

§  280.    The  statute  of  nonclaim. 

"Ever}7  person  having  a  claim  or  demand  against 
the  estate  of  a  deceased  person,  whether  due  or  to  grow 
due,  whether  absolute  or  contingent,  who  shall  not, 
after  the  giving  of  notice  as  above  provided,  exhibit 
his  said  claim  or  demand  to  the  judge  or  commis- 
sioners within  the  time  limited  for  that  purpose,  shall 

73  Sehaberg  v.  McDonald,  60  Neb.  493,  83  N.  W.  837;  Fritz  v.  Fritz, 
93  Iowa,  27,  61  N.  W.  169. 

74  Price  v.  Lancaster  County,   18  Neb.   199,  24  N.  W.  605;   Green- 
wood v.  Town  of  La   Salle,  107  111.  225,  26  N.  E.   1089;   Iowa  Land 
Co.  v.  Douglas  County,  8  S.  D.  491,  67  N.  W.  52. 

75  In  re  Kessler's  Estate,  87  Wis.  660,  59  N.  W.  129;  Patterson  v. 
Patterson,   13    Johns.     (N.   Y.)     379;     Quackenbush  v.  Ehle,   5   Barb. 
(N.  Y.)   469. 

(437) 


§  280  PROBATE    AND    ADMINISTRATION.  [Cliap.  24 

be  forever  barred  from  recovering  on  such  claim  or 
demand,  or  setting  off  the  same  in  any  action  what- 
ever. This  section  does  not  limit  or  affect  the  time 
within  which  a  person  may  enforce  any  lien  against 
property,  real  or  personal,  of  such  deceased  person, 
nor  does  it  affect  actions  pending  against  the  deceased 
at  the  time  of  his  death."76 

There  is  no  statute  of  this  kind  in  Oregon. 

The  statute  of  nonclaim,  as  it  is  called,  operates  the 
same  as  the  statute  of  limitations.  It  is  a  bar  to  the 
allowance  of  all  claims  properly  chargeable  against 
the  estate  which  are  not  filed  within  the  time  fixed  by 
the  court  in  its  first  order  for  filing  claims  or  subse- 
quent order  extending  the  same.77  The  personal  rep- 
resentative is  without  authority  to  waive  it,78  and  if 
he  neglects  to  plead  it  and  an  order  is  entered  allowing 
the  claim,  it  is  not  binding  on  the  estate  or  the  sureties 
on  his  administration  bond.79 

It  applies  to  all  classes  of  creditors  of  the  estate, 
though  some  of  them  may  be  nonresidents,  infants  or 
incompetent  persons.80  A  formal  direction  to  an  exec- 
utor contained  in  the  will  to  pay  debts  applies  to  such 
debts  only  as  have  been  filed  as  the  statute  requires, 

76  Rev.  Stats.,  c.  17,  §  126,  [1390]. 

77  Burling  v.  Alvord,  77  Neb.  861,  110  N.  W.  683;  Stichter  v.  Cox, 
52  Neb.  532,  72  N.  W.  848. 

78  Fitzgerald's  Estate  v.  First  Nat.  Bank,  64  Neb.  260,  89  N.  W.  813; 
Heath  v.  Wells,  5  Pick.  (Mass.)  140;  Thayer  v.  Hollis,  3  Met.  (Mass.) 
369;  Amoskeag  Mfg.  Co.  v.  Barnes,  48  N.  H.  25. 

79  Dawes  v.  Shed,  15  Mass.  6;  Robinson  v.  Hodge,  117  Mass.  222. 

80  Erwin  v.  Turner,  6  Ark.  14;  Rockport  v.  Walden,  54  N.  H.  167; 
Van  Hauen  v.  Tierney  (Mich.),  146  N.  W.  658;  Gardner  v.  Estate  of 
Callaghan,  61  Wis.  91,  20  N.  W.  685;  Cone  v.  Dunham,  59  Conn.  145, 
20  Atl.  311. 

(438) 


Chap.  24]  PROVING  CLAIMS.  §§281,282 

and  no  general  provision  for  payment  of  debts  relieves 
the  creditor  from  the  duty  of  filing  his  claim.81 

A  defendant  in  an  action  brought  by  an  executor  or 
administrator  cannot  set  up  a  defense  by  way  of  setoff 
or  counterclaim  a  demand  he  may  have  against  the 
estate,  unless  the  same  has  been  filed  in  court  within 
the  time  prescribed  by  the  order  of  such  court  and 
allowed,82  but  may  plead  it  as  a  payment,  provided  the 
deceased  in  his  lifetime  agreed  that  it  should  be 
credited  on  account.83 

§  281.    The  two  year  limitation. 

The  statute  provides  that  if  any  person  having  a 
claim  or  demand  shall  fail  for  two  years  from  and 
after  the  death  of  such  decedent  to  apply  for  and  take 
out  letters  of  administration  on  the  estate  of  such  de- 
ceased person,  or  cause  such  letters  to  be  taken  out 
as  provided  by  law,  then  such  claim  shall  be  forever 
barred.84  The  limitation  applies  only  to  intestate  es- 
tates. It  is  not  a  bar  to  the  filing  of  claims  by  credi- 
tors when  letters  have  been  granted  on  the  application 
of  the  heirs  of  next  of  kin  more  than  two  years  after 
the  death  of  the  decedent.85 

§  282.    Proving  claims. 

The  filing  of  a  claim  being  equivalent  to  the  com- 
mencement of  an  action  against  the  estate,  all  claims 

81  Collamore  v.  Wilder,  19  Kan.  67. 

82  Parker  v.  Wells,  68  Neb.  647,  94  N.  W.  717;  Carpenter  v.  Murphy, 
57  Wis.  541,  15  N.  W.  798;  Ewing  v.  Griswold,  43  Vt.  400;  Soule  v. 
Benton,  44  Vt.  309. 

83  Parker  v.  Wells,  68  Neb.  647,  94  N.  W.  717. 
M  Rev.  Stats.,  c.  17,  §126,  [1390]. 

85  National  Bank  v.  Bradshaw,  91  Neb.  714,  136  N.  W.  1015. 

(439) 


§  282  PROBATE    AND    ADMINISTRATION.  [Chap.  24 

must  be  filed  by  the  party  owning  them  and  having  a 
right  to  enforce  them.86  They  must  be  in  writing, 
itemized  and  supported  by  an  affidavit  stating  the 
amount  due  thereon  over  and  above  all  setoffs  and 
counterclaims.  When  based  upon  notes  or  bonds,  such 
instruments  themselves  are  properly  filed,  together 
with  a  sworn  statement  of  the  amounts  due  thereon; 
when  on  a  contract  or  obligation,  such  contract  or  obli- 
gation should  be  set  out,  and  the  demand  be  substan- 
tially like  a  petition  in  an  action  on  the  same  in  the 
county  or  district  court.  Where  the  demand  is  on  a 
covenant,  as  for  a  breach  of  warranty  of  title  in  a  deed 
of  conveyance,  it  will  greatly  lessen  the  duties  of  the 
judge  if  the  case  is  adjudicated  with  the  same  formal- 
ity as  regards  pleadings  as  in  an  action  brought  in  the 
district  court  for  that  purpose.87 

Claims  may  be  filed  at  any  date  after  the  entry  of 
the  order  and  the  close  of  the  last  business  day  fixed 
by  the  court.  They  may  be  heard  and  allowed  at  any 
times  fixed  by  the  court  or  by  agreement  of  parties, 
though  long  after  the  last  date  for  filing  them.88 

The  executor,  administrator,  a  creditor  or  a  bene- 
ficiary of  the  estate  may  contest  any  claim  on  file  in 
the  county  court.  The  filing  of  a  claim  is  notice  to 
all  parties  interested  in  the  estate  of  the  pendency  of 
a  suit  against  it.89 

8«  Civ.  Code,  §  23. 

87  Hartman  v.  Lee,  30  Ind.  281. 

88  Patrick  v.  Patrick,  72  Neb.  454,  100  N.  W.  939;  Schaberg's  Estate 
v.  McDonald,  60  Neb.  492,  83  N.  W.  737;  Hueber  v.  Sesseman,  38  Neb. 
78,  56  N.  W.  697. 

so  Dredla  v.  Baache,  60  Neb.  655,  83  N.  W.  916. 

(440) 


Chap.  24]  PROVING  CLAIMS.  §  283 

The  personal  representative  should  be  present  on 
the  dates  set  for  hearing,  if  any  claims  have  been  filed. 
Xo  demand  can  be  allowed  in  his  absence.90  He  should 
examine  into  all  claims  filed,  and  if  he  has  good  reason 
to  believe  that  any  claim  against  the  estate  is  unjust, 
excessive  or  not  a  proper  demand,  should  interpose  a 
defense  employing  necessary  legal  assistance.91 

Form  No.  137. 

AFFIDAVIT  VERIFYING  CLAIM. 
State  of  Nebraska, 


County, — as. 


C.  D.,  being  first  duly  sworn,  on  oath  says  that  the  annexed  is  a 
true  statement  of  his  account  against  the  estate  of  A.  B.,  deceased; 

that  the   amount   of  $ is  now   due  claimant,   and  the   same   is 

just  and  correct,  and  remains  due  and  unpaid,  and  that  he  knows 
of  no  legal  setoff  or  counterclaim  whatsoever  against  the  same,  or 
any  part  thereof. 

(Signed)     C.  D. 

§  283.     Proving  claims — Concluded. 

The  executor  or  administrator  should  file  all  coun- 
terclaims and  setoffs  against  demands  of  creditors,  and 
may  interpose  any  defense  which  would  be  available 
to  his  decedent  in  an  action  brought  on  the  same 
demand  during  his  lifetime.92 

Formal  pleadings  on  claims  are  not  required  by 
statute  but  frequently  are  by  court  rule.  It  will 
always  save  time  and  facilitate  business  if  answers 
and  replies  are  filed  as  in  other  cases.  They  will  be 
given  a  liberal  construction  in  the  interests  of  justice.93 

»o  Herman  v.  Beck,  68  Neb.  567,  94  N.  W.  512. 
81  Egerton's  Exrs.  v.  Egerton,  17  N.  J.  Eq.  419. 
'<2  Lucas  v.  Cassaday,  1  Greene  (Iowa),  208. 

93  Fitch  v.  Martin,  82  Neb.  124,  119  N.  W.  250;  Fitzgerald's  Estate 
v.  First  Nat.  Bank,  64  Neb.  260,  89  N.  W.  813;  Fitzgerald's  Estate  v. 

(441) 


§  283  PROBATE    AND    ADMINISTRATION.          [Chap.  24 

An  assignee  of  a  claim  filed  but  not  allowed  may 
proceed  thereon  in  the  name  of  the  original  claimant 
or  be  substituted.94  A  claimant  who  has  a  suit  pend- 
ing against  a  decedent  during  his  lifetime  for  the  re- 
covery of  any  demand  may  dismiss  the  same  without 
prejudice,  and  establish  it  before  the  judge,  but  if  the 
statute  of  limitations  would  have  been  a  bar  against 
the  claim  were  it  not  for  the  pending  of  the  suit  there- 
on, the  estate  may  successfully  plead  the  statute  of 
limitations.  The  claim  must  stand  upon  the  same 
footing  as  though  no  proceedings  were  commenced  or 
pending  to  recover  it.95 

A  judgment  rendered  against  the  deceased  in  a  court 
in  another  state  or  foreign  country  must  be  proved  the 
same  as  in  an  action  brought  on  a  foreign  judgment  in 
any  court  in  this  state,  and  the  failure  of  such  foreign 
court  to  acquire  jurisdiction  over  the  party  is  a  good 
defense.  Such  foreign  judgments,  as  well  as  domestic 
judgments,  should  always  be  exhibited.96  However, 
where  the  same  party  is  the  personal  representative 
of  the  estate  in  the  foreign  state,  a  judgment  against 
him  as  such  representative  in  a  court  of  that  state  is 
final  and  conclusive  against  the  estate  of  his  dece- 
dent here,  and  should  be  certified  to  the  judge  or 

*  •  O7 

commissioners.  ' 

Union  Savings  Bank,  65  Neb.  97,  90  N.  W.  994;  Devries  v.  Devries,  5 
Neb.  Unof.  179,  97  N.  W.  590. 

94  Harman  v.  Harman,  62  Neb.  452,  87  N.  W.  177;  Fitzgerald's 
Estate  v.  Union  Savings  Bank,  65  Neb.  97,  90  N.  W.  994. 

»5  Jones  v.  Keep's  Estate,  23  Wis.  45;  Bank  of  Maywood  v.  Mc- 
Allister's Estate,  56  Neb.  188,  76  N.  W.  552. 

96  Smith  v.  Grady,  68  Wis.  215,  31  N.  W.  477;  Jarvis  v.  Barrett, 
14  Wis.  591;  McEwan  v.  Ziramer,  38  Mich.  765. 

»7  Creighton  v.  Murphy,  8  Neb.  349. 

(442) 


Chap.  24]  PROVING  CLAIMS.  §  284 

A  claim  is  considered  as  allowed  on  the  date  the 
judge  announces  his  decision  thereon,  and  not  as  of 
the  date  when  it  is  journalized  and  spread  at  large  on 
the  records.98  A  county  judge  cannot  adjourn  the 
hearing  upon  any  claim  without  the  knowledge  of  the 
personal  representative,  nor  in  any  manner  change  or 
modify  his  decision  without  such  notice;  and  where  a 
judge,  without  notice,  set  aside  his  allowance  of  a 
claim,  and  allowed  a  much  larger  sum,  the  allowance 
will  be  set  aside  by  a  bill  in  equity,  it  appearing  that 
the  time  for  appeal  has  expired,  and  that  the  estate 
has  a  good  and  sufficient  defense." 

The  rule  in  regard  to  allowing  claims  is  that  if  no 
objections  are  made,  the  affidavit  verifying  the  ac- 
count is  sufficient  proof.  If  a  claim  is  contested,  it 
must  be  established  by  the  same  weight  of  evidence 
as  would  be  necessary  to  establish  it  in  an  action 
brought  against  the  decedent  while  living.  Parties 
should  present  their  whole  case  fully  and  fairly  in  the 
county  court.100 

§  284.    Funeral  expenses. 

The  surviving  husband  or  wife,  or  in  case  the  dece- 
dent left  no  surviving  spouse,  the  next  of  kin,  have 
charge  of  the  body  of  the  deceased,  with  the  right  to 
designate  where  it  shall  be  buried,  the  kind  of  burial 

98  McGrew  v.  State  Bank  of  Humboldt,  60  Neb.  716,  84  N.  W.  99; 
Bickel  v.  Butcher,  35  Neb.  761,  53  N.  W.  663. 

»9  Dundas  v.  Chrisman,  25  Neb.  495,  41  N.  W.  449. 

100  Fitzgerald's  Estate  v.  Union  Sav.  Bank,  65  Neb.  97,  90  N.  W. 
994. 

(443) 


§  284  PEOBATE   AND    ADMINISTRATION.          [Chap.  24 

service   and   all   other   funeral   arrangements,   unless 
otherwise  directed  by  will.101 

Under  the  Oregon  statute,  the  executor  named  in 
the  will,  or  if  there  be  none,  or  he  do  not  attend  to  it, 
then  the  husband,  widow  or  next  of  kin,  in  the  order 
named,  are  authorized  to  incur  funeral  charges  on 
account  of  the  estate,  in  the  burial  of  the  deceased  be- 
fore administration.  The  burial  must  be  in  a  manner 
suitable  to  the  conditions  and  circumstances  of  life  of 
the  decedent.  If  the  estate  is  insufficient  to  satisfy  the 
claims  against  it,  including  legacies  and  devises,  such 
charges  are  limited  to  those  necessary  to  give  the  de- 
ceased a  plain  and  simple  burial.102 

The  expenses  of  funeral,  burial,  etc.,  stand  upon  a 
different  footing  than  other  demands  against  the  es- 
tate, as  they  are  not  contracted  by  the  decedent,  nor, 
as  it  frequently  happens,  by  any  person  who  has  power 
to  bind  the  estate.  The  estate,  however,  is  liable  upon 
an  implied  promise  to  a  third  person  who,  as  an  act 
of  duty  or  necessity,  has  provided  for  the  burial  ex- 
penses of  a  deceased  person  in  a  manner  suitable  to 
his  social  rank  and  standing,  and  such  expenses  are 
reasonable.103  They  are  therefore  more  in  the  nature 
of  expenses  of  administration,  and  there  is  some  di- 
versity of  opinion  whether  they  should  be  paid  by  the 
executor  or  administrator  without  first  being  formally 
allowed  by  the  county  judge.  The  courts  generally 

101  McEntee  v.  Bonacum,  66  Neb.  551,  92  N.  W.  633;  Thompson  v. 
Pierce,  95  Neb.  692,  146  N.  W.  948;  Larson  v.  Chase,  47  Minn.  307,  50 
N.  W.  238;   Neighbors  v.  Neighbors   (Ky.),  65  S.  W.  607;   O'Donnell 
v.  Slack,  123  Cal.  285,  55  Pac.  906;  Hackett  v.  Hackett,  18  R.  I.  155, 
28  Atl.  42. 

102  L.  O.  L.,   §  1299. 

103  Sullivan  v.  Homer,  41  N.  J.  Eq.  299,  7  Atl.  411;  Lenderink  v. 
Sawyer,  92  Neb.  587,  138  N.  W.  744. 

(444) 


Chap.  24]  PROVING  CLAIMS.  §  285 

hold  that  the  personal  representative  may  pay  them 
directly  without  their  being  first  filed.104 

The  practice  varies  in  this  state.  Some  courts,  by 
rule,  require  them  to  take  the  same  course  as  other 
claims,  while  others,  also  by  rule,  permit  the  executor 
or  administrator  to  pay  them  directly  and  credit  him- 
self with  them  in  his  final  account.  When  the  estate 
is  solvent,  there  seems  to  be  no  reason  why  they  can- 
not as  well  be  paid  by  the  personal  representative 
direct,  the  question  of  their  validity  being  determined 
on  the  hearing  of  the  final  account.  If  there  is  any 
question  about  the  ability  of  the  estate  to  pay  expenses 
of  administration  and  funeral  charges,  they  should  be 
filed;  otherwise  the  personal  representative  will  have 
some  difficulty  in  paying  the  administration  expenses 
in  full. 

§  285.    Funeral  expenses — Concluded. 

Funeral  expenses  must  be  reasonable  in  amount,  and 
such  as  are  warranted  by  the  financial  condition  of 
the  estate  and  the  social  standing  of  decedent  during 
his  lifetime.  A  costly  and  elaborate  funeral  for  a  man 
who  lived  plainly  and  left  only  a  small  estate  is  out  of 
place,  and  though  such  a  one  is  held,  the  cost  of  a 
plain,  simple  funeral  is  all  the  estate  can  be  held  liable 
to  pay.105 

Though  the  same  rule  applies  in  the  case  of  insolvent 
estates,  the  courts  are  loath  to  refuse  to  sanction  pay- 
ment of  funeral  expenses  which  are  for  such  services 

104  Lenderink  v.  Sawyer,  92  Neb.  587,  138  N.  W.  744;  Patterson  Y. 
Patterson,  59  N.  Y.  574;  McNally  v.  Weld,  30  Minn.  209,  14  N.  W. 
895;  Dampier  v.  St.  Paul  Trust  Co.,  46  Minn.  526,  49  N.  W.  286;  Fitz- 
hugh's  Exr.  v.  Fitzhugh.  11   Gratt.   (Va.)   300. 

105  Foley  v.  Brocksmit,  119  Iowa,  457,  93  N.  W.  344. 

(445) 


§  285  PROBATE    AND    ADMINISTRATION.          [Chap.  24: 

as  are  usually  rendered  the  remains  of  those  whose 
rank  and  standing  in  life  are  the  same  as  those  of  the 
deceased.106  They  include  charges  for  the  burial,  un- 
dertaker's bill,107  mourning  goods  for  widow  and 
family,108  price  of  a  burial  lot,109  and  if  the  deceased 
died  away  from  home,  the  cost  of  the  transportation 
of  his  remains  to  the  family  burial  lot.110  The  cost  of 
a  suitable  monument  or  tombstone  is  also  a  proper 
expense.111  The  expenses  of  a  "wake,"  it  has  been 
held,  are  a  proper  funeral  expense  where  it  appeared 
that  a  custom  prevailed  among  those  of  the  social  posi- 
tion and  nationality  as  the  deceased  of  holding  such  a 
ceremony  previous  to  the  funeral  proper.112 

At  common  law  a  wife's  funeral  expenses  and  ex- 
penses of  last  illness  were  not  a  charge  against  her 
separate  estate  unless  they  could  not  be  collected  from 
her  husband,113  and  such  is  still  the  rule  in  many  juris- 
dictions,114 though  other  cases  hold  her  estate  primarily 
liable.115 

106  Bradley's   Estate,   11   Phila.    (Pa.)    87;    Sullivan   v.  Homer,  41 
N.  J.  Eq.  299,  7  Atl.  411;  Flintham's  Appeal,  1  Serg.  &  R.  (Pa.)  16. 
10T  Hewett  v.  Bronson,  5  Daly  (N.  Y.),  1. 

108  Wood's  Estate,  1  Ashm.  (Pa.)  314. 

109  Metz  Appeal,  11  Serg.  &  R.  (Pa.)  201;  Jennison  v.  Hapgood,  10 
Pick.  (Mass.)  77. 

no  Sullivan  v.  Homer,  41  N.  J.  Eq.  299,  7  Atl.  411. 

111  Owens  v.  Bloomer,  14  Hun   (N.  Y.),  296;  Ferrin  v.  Merrick,  41 
N.  Y.  315. 

112  McCue  v.  Garvey,  14  Hun  (N.  Y.),  562. 

113  Galloway  v.  McPherson's  Estate,  67  Mich.  546,  35  N.  W.   114; 
Petition  of  Johnson,  15  R.  I.  438,  8  Atl.  248. 

H4  Gould  v.  Moulahan,  53  N.  J.  Eq.  341,  33  Atl.  483;  Brand  v.  Brand, 
109  Ky.  721,  60  S.  W.  704;  Waesch's  Estate,  106  Pa.  204,  30  Atl.  1124. 

us  Schneider  v.  Estate  of  Brier,  129  Wis.  446,  109  N.  W.  99;  Mor- 
risHey  v.  Mulhern,  168  Mass.  412,  47  N.  E.  407;  McClellan  v.  Filson, 
44  Ohio  St.  184,  5  N.  E.  861. 

(446) 


Chap.  24]  PROVING  CLAIMS.  §§286,287 

§  286.  Claims  against  an  estate — Accrued  demands. 
Demands  which  accrued  during  the  lifetime  of  the 
decedent  and  which  can  be  enforced  through  the 
county  court,  except  where  suits  are  pending  thereon, 
consist  of  demands  based  on  a  contract,  either  express 
or  implied,116  for  conversion,117  for  breach  of  cove- 
nant,118 for  mesne  profits,  for  an  injury  to  real  or  per- 
sonal estate,  and  for  any  deceit  or  fraud,119  for  an 
accounting  on  a  contract  creating  a  trust  relation  be- 
tween decedent  and  claimant,  which  contract  was  com- 
pleted during  decedent's  lifetime,  and  could  have  been 
enforced  by  an  action  at  law120  for  specific  articles,121 
for  taxes,122  for  liability  as  surety,123  and  in  some  cases 
for  trust  funds.124 

§  287.    Claims  becoming  due  after  death. 

Another  class  of  claims  which  should  be  filed  are 
those  which  became  due  after  decedent's  death.125 
These  consist  of  demands  arising  from  contracts  made 
by  the  decedent  during  his  lifetime  with  claimant  or 
his  assignor,  payment  of  which  was  to  be  made  after 
the  death  of  the  decedent,  or  where  there  was  a  general 

lie  3  Bl.  Com.,  §  302. 

H7  Middleton  v.  Robinson,  1  Bay  (S.  C.),  58. 

118  Hovey  v.  Newton,  11  Pick.   (Mass.)   421. 

119  Civ.  Code,  §463. 

120  Sullivan  v.  Boss'  Estate,  113  Mich.  311,  76  N.  W.  309,  overruling 
98  Mich.  570. 

121  Rev.  Stats.,  c.  17,  §  124,  [1388]. 

122  Findley  v.  Taylor,  97  Iowa,  420,  66  N.  W.  774. 

123  Wood  v.  Fisk,  63  N.  Y.  245. 

124  Gaffney's  Estate,   146   Pa.  49,  23   Atl.  163.     See  §  278,  supra. 

125  Rev.  Stats.,  c.  17,  §  124,  [1388]. 

(417) 


§  288  PROBATE    AND   ADMINISTRATION.          [Chap.  24 

promise  to  pay.128    The  contract  may  be  either  verbal 
or  written.127 

They  also  include  certain  demands  not  necessarily 
based  on  either  an  express  or  implied  contract  between 
decedent  and  claimant  or  his  assignor,  but  on  acts,  sur- 
roundings, conditions  and  circumstances  which  the 
court  will  construe  as  imposing  a  liability  against  the 
estate  for  such  services  or  expenses.  They  consist  of 
expenses  of  last  illness,  and  the  costs  and  expenses  of 
an  unsuccessful  proponent  of  a  will  who  has  acted  in 
good  faith  and  in  performance  of  the  duties  which  the 
law  imposes  on  him.128  An  unsuccessful  contestant  of 
a  will,  it  has  been  held,  has  no  claim  against  the 
estate.129 

§  288.    Express  contracts  to  pay  for  services  ren- 
dered. 

Where  services  are  rendered  decedent  by  claimant 
under  an  express  contract,  either  verbal  or  written, 
which  were  to  be  paid  for  by  a  devise  or  legacy,  or 
otherwise,  and  the  decedent  dies  intestate  or  fails  to 
provide  for  claimant  in  his  will,  the  claimant  may  re- 
cover, in  the  county  court,  the  amount  agreed  on;  or 
if  no  amount  has  been  agreed  on,  he  may  recover  what 
such  services  are  reasonably  worth.130  If  he  is  given 

126  Kidler  v.  Kidler,  93  Iowa,  347,  61  N.  W.  994. 

127  Gary  v.  White,  52  N.  Y.  138;  Hobart  v.  Hobart,  62  N.  Y.  80; 
Appeal  of  Starkey,  61  Conn.  199,  23  Atl.  1081. 

128  Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843;  In  re  Bowman's 
Will,  133  Wis.  494,  113  N.  W.  956. 

129  Wallace  v.  Sheldon,  56  Neb.  55,  76  N.  W.  180;  overruling  See- 
brock  v.  Fedawa,  33  Neb.  413,  50  N.  W.  270;   and  Mathis  v.  Pitman, 
32  Neb.  191,  49  N.  W.  182.     See  §  104,  supra. 

130  Wallace  v.  Long,  105  Ind.  522,  5  N.  E.  666;  Taggart  v.  Tcvanny, 
1  Ind.  App.  339,  27  N.  E.  511;  Ellis  v.  Carey,  74  Wis.  176,  42  N.  W. 

(448) 


Chap.  24]  PROVING  CLAIMS.  §  289 

a  legacy  and  it  is  insufficient,  he  is  entitled  to  the 
difference  between  what  he  received  and  what  he 
earned.131 

Where  the  services  are  of  such  a  nature  that  their 
pecuniary  value  cannot  be  determined,  the  claimant 
may  file  a  bill  in  equity  for  a  specific  performance  of 
the  agreement.132  An  agreement  to  leave  claimant  a 
devise  or  legacy,  though  void  for  any  reason,  is  admis- 
sible for  the  purpose  of  showing  that  the  services  were 
not  intended  by  either  party  to  be  gratuitous.133 

§  289.  Implied  contracts  to  pay  for  services  rendered. 
The  relation  or  lack  of  relationship  of  the  parties, 
and  the  circumstances,  surroundings  and  conditions 
under  which  the  services  were  rendered  may  be  such 
as  to  imply  a  contract  between  the  parties  for  their 
payment.  Services  performed  without  any  expecta- 
tion of  their  being  paid  for,  and  without  evidence  of 
any  request  for  their  payment,  for  a  party  closely  re- 
lated, are  not  a  valid  claim.134  Where  claimant  and 
decedent  are  members  of  the  same  household,  the  law 
will  not  ordinarily  imply  a  contract  between  them  for 
support  or  services  rendered.135 

252;  Freeman  v.  Toss.  145  Mass.  361,  14  N.  E.  141;  In  re  Kessler's 
Estate,  87  Wis.  660,  59  N.  W.  129;  Schwab  v.  Pierro,  43  Minn.  520, 
46  N.  W.  71. 

131  Porter  v.  Dunn,  131  N.  Y.  314,  30  N.  E.  122;  Beynolds  v.  Robin- 
son, 64  N.  Y.  589. 

132  Kofka  v.  Rosicky,  41  Neb.  328,  59  N.  W.  788. 

133  Martin  v.  Martin,  108  Wis.  284,  84  N.  W.  439.     For  enforcement 
of  agreement  to  leave  property  by  will,  see  §  304,  post. 

134  Xormile  v.  Osborn,  207  Pa.  367,  56  Atl.  937;  Hunson's  Estate, 
133  Cal.  38,  65  Pac.  14. 

135  Robinson  v.  McAffee's  Estate,  59  Mich.  375,  26  N.  W.  643;  Hall 
v.  Finch.  29  Wis.  278;  Dye  v.  Kerr,  15  Barb.  (N.  Y.)  444;  Hinkle  v. 

29-Pro.  Ad.  (449-) 


§  290  PROBATE   AND   ADMINISTRATION.          [Chap.  24 

If  it  appears  that  there  was  no  intention  that  the 
services  should  be  gratuitous,  and  the  facts  and  cir- 
cumstances attending  the  performance  of  the  work  are 
sufficient  to  rebut  the  presumption  arising  from  rela- 
tionship, and  authorize  the  inference  that  both  parties 
acted  upon  the  understanding  that  the  services  were 
to  be  paid  for,  a  promise  to  pay  for  the  same  will  be 
implied.136  The  rule  that  a  person  who,  after  becom- 
ing of  age,  remains  under  the  parental  roof,  and  occu- 
pies the  same  family  relations  as  while  a  minor,  will 
be  presumed  to  have  rendered  services  to  his  parents 
gratuitously,  does  not  apply  where  the  family  rela- 
tions have  been  sundered  for  some  time,  and  the  par- 
ties again  live  together,  it  appearing  from  the  business 
relations,  surroundings  and  circumstances  that  there 
was  an  expectation  of  receiving  pay  for  the  services, 
and  an  intention  on  the  part  of  the  deceased  that  the 
claimant  should  be  rewarded  for  his  labor.137 

§  290.    Implied   contract   to   pay   for   services   ren- 
dered— Concluded. 

Less  proof  is  required  to  establish  an  implied  con- 
tract for  services  where  the  parties  were  but  distantly 

Sage,  65  Ohio  St.  256,  65  N.  E.  999;  Williams  v.  Hutchinson,  3  N.  Y, 
312. 

136  Hoaker  v.  Van  Slambrook,  127  Mich.  61,  86  N.  W.  402;  Wallace 
v.  Schaud,  81  Md.  594,  32  Atl.  324. 

137  Marietta  v.  Marietta,  90  Iowa,  201  57  N.  W.  798;   Morton  v. 
Kainey,  82  111.  215;  Ensey  v.  Hines,  30  Kan.  704,  2  Pac.  261;  Hill  v. 
Hill,  121  Ind.  255,  23  N.  E.  87;  Chapman  v.  Barnes,  29  111.  App.  184; 
In  re  Kyder's  Estate,  59  Hun  (N.  Y.),  618;  Simmons  v.  Partridge,  154 
Mass.  500,  28  N.  E.  901.     It  is  a  difficult  matter  to  draw  the  line  be- 
tween  cases  where   liability  will   be  implied   and   where   none   exists. 
So  much  depends,  as  appears  from  the  above-cited  cases,  on  the  age,. 

(450) 


Chap.  24]  PROVING  CLAIMS.  §  291 

related,  and  had  never  occupied  even  a  quasi  parental 
relation,138  or  were  not  related.  Where  the  parties 
were  not  related,  it  has  been  held  that  the  rendition 
ard  acceptance  of  the  services  and  evidence  of  their 
value  were  sufficient  to  charge  the  estate  with  their 
payment,139  and  where  they  are  related,  evidence  suffi- 
cient to  rebut  the  presumption  arising  from  such  re- 
lationship, though  falling  short  of  proving  an  express 
contract,  is  sufficient.140 

A  claimant  is  entitled  to  recover  for  such  services 
what  they  are  reasonably  worth.141  The  amount  of 
such  recovery  is  determined  by  evidence  of  the  condi- 
tion of  the  decedent,  "just  as  to  his  condition,  as  to 
how  he  had  to  be  taken  care  of,  the  care  and  attention 
which  such  condition  required  and  which  he  received, 
and  the  circumstances  and  conditions  under  which  the 
parties  came  together  again  under  the  family  roof," 
and  their  general  condition  and  standing  in  life.142 

§  291.  Conversations  and  transactions  with  decedent. 
Our  Civil  Code  provides  that  no  person  having  a 
direct  legal  interest  in  the  result  of  any  civil  action  or 
proceeding,  where  the  adverse  party  is  the  representa- 
tive of  a  deceased  person,  shall  be  permitted  to  testify 

health,  circumstances  and  conditions  of  the  parties,  that  each  has  to 
*be  decided  largely  on  its  own  particular  facts. 

138  In  re  Kessler's   Estate,   87  Wis.  660,  59   X.  W.   129;   Quigly  v. 
ArnoM.  22  111.  App.  269. 

139  Wallace   v.   Schaud,   81   Md.   594,   32   Atl.   324;   Todd  v.  Martin 
(Cal.),  37  Pac.  872. 

1*0  In  re  Kessler's  Estate,  87  Wis.  660,  59  X.  W.  129. 
i^i  Hawkins  v.  Doe,  60  Or.  437,  117  Pac.  749. 

142  Marietta  v.  Marietta,  90  Iowa,  201,  57  X.  W.  708;  Peck  v.  Mc- 
Kean,  45  Iowa,  18;  Wilson  v.  V.'ilson,  52  Iowa,  44,  2  N.  W.  615. 

(451) 


§  291  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

to  any  transaction  or  conversation  had  between  the 
deceased  person  and  the  witness,  unless  the  evidence 
of  the  deceased  person  shall  have  been  taken  and  read 
in  evidence  by  the  adverse  party  in  regard  to  such 
transaction  or  conversation,  or  unless  such  representa- 
tive shall  have  introduced  a  witness  who  shall  have 
testified  in  regard  to  such  transaction  or  conversation, 
in  which  case  the  party  having  such  direct  legal  in- 
terest may  be  examined  in  regard  to  the  facts  testified 
to  by  such  deceased  person,  but  shall  not  be  permitted 
to  testify  further  in  regard  to  such  transaction  or  con- 
versation.143 The  word  "representative"  includes  an 
executor  or  administrator,144  consequently  the  evidence 
of  third  parties  is  necessary  to  prove  an  express  verbal 
contract  or  an  implied  contract. 

A  transaction  may  be  defined  as  an  affair  which 
forms  the  subject  of  negotiations  between  parties.145 
It  is  an  exceedingly  broad  term  as  used  in  the  code, 
embracing  every  variety  of  matters  which  are  the  sub- 
ject of  negotiations,  contracts  or  actions  between  par- 
ties,148 including  the  contents  of  a  letter,  the  letter 
itself  having  been  destroyed,147  the  delivery  of  a  con- 
tract between  the  parties,148  identification  of  letters 
written  by  deceased,149  identification  of  checks  payable 

143  Civ.  Code,  §  335. 

"4  Gillette  v.  Morrison,  9  Neb.  395,  2  N.  W.  853. 

145  Kroh  v.  Heins,  48  Neb.  691,  67  N.  W.  771. 

146  Eussell  v.  Close's  Estate,  79  Neb.  318,  112.  N.  W.  559,  83  Neb. 
232,  119  N.  W.  515;  Wilson  v.  Wilson,  83  Neb.  562,  120  N.  W.  147. 

147  Kroh  v.  Heins,  48  Neb.  691,  67  N.  W.  771;  Smith  v.  Perry,  52 
Neb.  738,  73  N.  W.  282;  Sorenson  v.  Sorenson,  56  Neb.  729,  77  N.  W.  68. 

148  Russell  v.  Close's  Estate,  79  Neb.  318,  112  N.  W.  559;  Wilson  v. 
Wilson.  83   Neb.  562,  120  N.  W.  147. 

149  Harte  v.  Reichenberg,  3  Neb.  Unof.  820,  92  N.  W.  987. 

(452) 


Chap.  24]  PBOVING  CLAIMS.  §  292 

to  deceased,150  payment  or  delivery  of  money,151  the  de- 
livery of  property,  the  title  to  which  is  in  dispute,152 
private  diaries  containing  entries  relating  to  business 
affairs  of  the  deceased,153  and  the  making  of  indorse- 
ments on  notes.154 

§  292.    Competency  of  adverse  party. 

The  interested  party  is  not  disqualified  as  a  witness, 
but  merely  from  testifying  in  regard  to  matters  pro- 
hibited by  the  code.155  He  may  testify  that  a  certain 
instrument  was  in  existence,  where  he  saw  it  and  its 
condition  when  he  saw  it.156 

A  claimant  for  services  rendered  or  work  and  labor 
performed  is  not  entirely  barred  by  the  statute  from 
testifying  concerning  the  same.  He  may  testify  to 
what  he  has  done,  providing  it  does  not  involve  a  per- 
sonal transaction  with  the  deceased,  and  then,  if  he  can 
connect  these  services  with  the  deceased  by  other  and 
competent  testimony,  his  testimony,  if  otherwise  rele- 
vant and  competent,  may  be  considered  by  the  court 
or  jury.157  The  questions  cannot  be  asked  in  such 
form  that  an  answer,  while  ostensibly  excluding  the 

iso  Holloway  v.  Filson,  89  Neb.  403,  131  N.  W.  606. 

151  In  re  Necker's  Estate,  80  Neb.  123,  113  N.  W.  1045. 

152  Nunnally  v.  Becker,  52  Ark.  550,  13  S.  W.  79. 

153  Fitch  v.  Martin,  83  Neb.  124,  119  N.  W.  25. 

154  Cornelius  v.  Miles   (Ky.),  53  S.  W.  517. 

155  Sharmer   v.   Mclntosh,  43   Neb.   509,   61   N.   W.   727;   Riddell   v. 
Riddell,  70  Neb.  472,  97  N.  W.  609. 

156  Hartnett  v.  Holdredge,  5  Neb.  Unof.  114,  97  N.  W.  443,  73  Neb. 
570,  103  N.  W.  277. 

157  Fitch  v.  Martin,  74  Neb.  538,  104  N.  W.  1072,  83  Neb.  124,  119 
N.  W.  25. 


§  293  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

deceased  therefrom,  carries  with  it  the  inference  that 
the  services  were  performed  for  the  deceased.158 

The  owner  of  a  claim  on  a  book  account  is  not  a  com- 
petent witness  to  prove  the  entries  upon  his  own  books, 
as  they  are  considered  as  evidence  of  transactions.159 

The  assignor  of  a  claim  who  disposed  of  it  in  good 
faith  previous  to  the  death  of  the  decedent  is  not  dis- 
qualified from  testifying  fully,160  but  if  the  transfer 
was  made  subsequently  to  his  death,  he  is  bound  by 
the  same  rule  as  the  claimant.161 

Under  the  Oregon  practice,  the  questions  discussed 
in  sections  291,  292,  293  and  294  are  not  raised  in 
actions  on  claims.  The  facts  which  establish  the  lia- 
bility of  the  estate  to  the  claimant  must  be  proved  by 
other  evidence  than  that  of  the  claimant.  He  is  a  com- 
petent witness  as  to  all  matters  connected  with  the 
claim,  but  the  court,  a  referee  or  a  jury  cannot  allow 
it  unless  there  is  sufficient  competent  evidence  outside 
of  his  testimony  to  establish  it.162 

§  293.    Adverse  party. 

The  husband  or  wife  of  claimant  may  testify  as  to 
such  transactions  or  conversations  unless  he  or  she  be 
a  part  owner  of  the  claim.163 

The  term  "direct  legal  interest  in  the  result  of  any 
civil  action  or  proceeding"  refers  only  to  the  claim  or 

158  Fitch  v.  Martin,  74  Neb.  538,  104  N.  W.  1072,  83  Neb.  124,  119 
N.  W.  25. 

159  Martin  v.  Scott,  12  Neb.  42,  10  N.  W.  532. 

i«o  Tecumseh  Nat.  Bank  v.  McGee,  61  Neb.  709,  85  N.  W.  949. 

l«i  Magenau  v.  Bell,  13  Neb.  247,  13  N.  W.  277;  Riddell  v.  Riddell, 
70  Neb.  472,  97  N.  W.  609. 

1«2  Goltra  v.  Penland,  45  Or.  261,  77  Pac.  129;  L.  O.  L.,  §  1241. 

l«3  Gillett  v.  Morrison,  9  Neb.  395,  2  N.  W.  853;  Parker  v.  Wells. 
68  Neb.  647,  94  N.  W.  717;  Hisket  v.  Bozarth,  75  Neb.  70,  105  N.  W 
990;  Adams  v.  Dennis,  76  Neb.  682,  107  N.  W.  865. 
(454) 


Chap.  24]  PROVING  CLAIMS.  §  294 

demand  sought  to  be  enforced  in  the  action  pending, 
so  that  a  joint  heir  or  legatee  is  competent  to  testify 
to  transactions  or  conversations  if  he  has  no  interest 
in  the  particular  demand.184 

A  representative  who  is  only  a  nominal  defendant, 
as  in  an  action  by  a  wife  to  set  aside  the  joint  deed  of 
herself  and  husband,  is  not  an  adverse  party.185 

The  term  ' '  representative  "  includes  other  parties 
than  an  executor  or  administrator,  a  surviving  part- 
ner,166 creditors  of  an  insolvent  estate,  in  an  action  to 
set  aside  an  alleged  fraudulent  transfer,167  an  assignee 
of  creditors  in  an  action  between  such  assignee  and  a 
deceased  assignor,168  and  any  party  who  succeeds  to 
the  right  of  the  decedent  by  purchase,  descent  or  opera- 
tion of  law.169 

A  party  may  testify  to  conversations  and  transac- 
tions with  the  deceased  agent  of  his  adverse  party  the 
same  as  if  such  agent  were  living.170 

§  294.    Waiver  of  objections. 

Section  335  of  the  Revised  Civil  Code  does  not  oper- 
ate like  the  statute  of  nonclaim,  and  the  representative 

164  Hageman  v.  Powell's  Estate,  76  Neb.  514,  107  N.  W.  749. 
i«5  Buckingham  v.  Eoar,  45  Neb.  244,  63  N.  W.  398. 

166  Mead  v.  Weaver,  42  Neb.  149,  60  N.  W.  375;  Pierce  v.  Atwood, 
64  Xeb.  92,  89  N.  W.  669;  North  v.  Angelo,  75  Neb.  381,  110  N.  W. 
570.     In  the  latter  case  a  plaintiff  was  permitted  to  testify  to  transac- 
tions with  a  decedent  in  an  action  against  a  copartnership  which  suc- 
ceeded  to   the   business   of   a    partnership    in   which   decedent   was   a 
member.     The  court  approved  the  rule  in  the  Mead  case. 

167  Adler  Sons  Co.  v.  Hellman,  55  Xeb.  266,  75  N.  W.  877. 
l«8  Housel  v.  Cremer,  13  Neb.  298,  14  N.  W.  398. 

16«  Brown  v.  Forbes,  1  Neb.  Unof.  888,  96  N.  W.  52. 
170  Walker  v.  Hale,  92  Neb.  829,  139  N.  W.  658. 

(455) 


§  294  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

may  waive  it  by  failing  to  make  the  proper  objection,171 
or  by  introducing  such  testimony  himself.172  When  he 
introduces  any  evidence  of  a  transaction  by  a  claimant 
with  the  decedent  or  of  a  conversation,  the  claimant 
is  then  competent  to  testify  fully  in  regard  to  every 
element  of  that  phase  of  the  contract  gone  into  by  tho 
other  side,  but  no  further.173  If  evidence  of  a  part  of 
the  testimony  given  on  another  trial,174  or  a  part  of  a 
conversation,175  or  a  letter  concerning  the  transaction 
is  given,178  the  claimant  may  in  rebuttal  give  his  ac- 
count of  the  conversation  or  transaction  or  conversa- 
tion.177 

Evidence  as  to  one  conversation  will  not  permit  tes- 
timony of  another  and  independent  conversation, 
though  it  followed  almost  immediately,178  nor  payment 
of  a  note  secured  by  mortgage,  of  an  agreement  made 
when  the  mortgage  was  executed.179 

Where  testimony  of  the  claimant  was  taken  by  depo- 
sition and  proper  objections  were  interposed  to  the 
same  as  incompetent  under  the  code,  the  personal 
representative  did  not  waive  his  objections  to  the  tes- 
timony by  cross-examination,  where  his  objections 

171  Bartlett  v.  Bartlett,  15  Neb.  593,  19  N.  W.  691. 

172  Parrish  v.  McNeil,  36  Neb.  727,  55  N.  W.  222. 

173  Dickinson  v.  Columbus  State  Bank,  70  Neb.  260,  98  N.  W.  813; 
Taylor  v.   Ainsworth,  49   Neb.  496,  68   N.  W.   1045;   American   State 
Bank  v.  Harrington,  34  Neb.  597,  52  N.  W.  376. 

174  Russell  v.  Close's  Estate,  83  Neb.  232,  119  N.  W.  515. 

175  In  re  Neckel's  Estate,  80  Neb.  123,  113  N.  W.  1015. 

176  Cline  v.  Dexter,  72  Neb.  619,  101  N.  W.  246. 

177  Bangs  v.  Gray,  60  Neb.  457,  83  N.  W.  680,  in  which,  as  well  as  in 
Russell  v.  Close's  Estate,  plaintiff  substantially  established  his  cause  of 
action  on  rebuttal. 

178  In  re  Neckles'  Estate,  80  Neb.  123,  113  N.  W.  1045. 

179  Dickenson  v.  Columbus  State  Bank,  70  Neb.  260,  98  N.  W.  813. 

(456) 


Chap.  24]  PROVING  CLAIMS.  §  295 

were  sustained  by  the  court,  and  he  is  not  entitled  to 
the  benefit  of  his  cross-examination.180 

g  295.    Declarations  and  admissions  to  third  party  in 

presence  of  claimant. 

A  claimant  may  testify  as  to  conversations  in  which 
he  took  no  part  between  decedent  and  a  third  party, 
concerning  a  transaction  between  claimant  and  dece- 
dent.181 His  evidence  in  such  case  is  on  the  same  foot- 
ing, as  far  as  admissibility  is  concerned,  as  admissions, 
declarations  or  conversations  made  to  third  parties 
who  have  no  interest  in  the  claim  or  demand.182  Dec- 
larations or  admissions  are  always  competent  to  prove 
the  terms  of  a  contract  and  that  it  has  been  complied 
with  by  the  claimant,183  and  thus  to  prove  claimant's 
demand.184 

By  the  Oregon  code  the  declaration,  act  or  omission 
of  a  deceased  person  against  his  interest  is  admissible 
as  evidence  to  that  extent  against  his  successor  in  in- 
terest,185 and  when  a  party  in  an  action,  suit  or  pro- 
ceeding against  an  executor  or  administrator  appears 
as  a  witness  in  his  own  behalf,  or  offers  statements 
made  by  the  deceased  against  the  interest  of  the  de- 
ceased, statements  of  the  deceased  in  his  own  favor 
may  also  be  proven.186 

iso  Bentley  v.  Bentley's  Estate,  72  Neb.  803,  101  N.  W.  976. 

181  Kroh  v.  Heins,  48  Neb.  691,  67  N.  W.  771;  Powers  v.  Powers, 
79   Neb.   680,   113    N.  W.   189;     Wright   v.   Reed,   118    Iowa,   333,  92 
N.  W.  61. 

182  Heyne   v.   Dorflier,   57   Hun    (N.   Y.),   591;    Carey   v.   White,   52 
N.  Y.  138;  Hobart  v.  Hobart,  62  N.  Y.  80. 

183  Simmonds  v.  Partridge,  154  Mass.  500,  28  N.  E.  901. 

184  Knight   v.   Knight,  6  Ind.   App.  269,  33  N.  E.  456;   Kettery  v. 
Thumma,  9  Ind.  App.  498,  36  N.  E.  919. 

185  L.  O.   L.,   §  710. 

186  L.  O.  L.,   §  732. 

(457) 


§§296,297       PROBATE   AND    ADMINISTRATION.          [Chap.  24 

§  296.    Claims  for  breach  of  covenants. 

Damages  for  breach  of  covenant  in  a  deed  or  other 
conveyance  made  by  a  decedent,  or  of  a  personal  cove- 
nant, if  accruing  during  his  lifetime,  are  a  proper 
demand  against  his  estate.187  If  occurring  after  the 
death  of  the  covenantor,  the  demand  is  against  the  heir 
or  devisee  and  not  the  estate,188  except  the  covenant 
be  a  personal  one,  in  which  case  the  claim  lies  against 
the  estate.188 

§  297.    Claims  due  nonresidents. 

The  county  court  has  power  to  adjust  claims  of  non- 
residents. The  policy  of  the  law  is  to  favor  as  far  as 
possible  the  local  creditors  and  to  require  foreign 
creditors,  when  the  administration  in  this  state  is  an- 
cillary, to  file  their  demands  with  the  representative 
in  their  own  state.  At  the  same  time  a  nonresident 
creditor  is  entitled  to  the  same  rights  in  the  estate  as 
a  resident.  The  allowance  of  the  claim  in  another  jur- 
isdiction and  where  the  estate  is  under  the  charge  of  a 
different  administrator  is  not  binding  on  the  personal 
representative  in  this  state.  There  is  no  privity  be- 
tween them.190  The  local  administrator  succeeds  to 
none  of  the  powers,  rights  and  duties  of  the  foreign 
representative,  and  a  decision  against  the  representa- 

187  Estabrook  v.  Hapgood,   10   Mass.  313;   Sheldon  v.  Warner,  58 
Mich.  444,  26  N.  W.  667. 

188  Scott  v.  Scott,  70  Pa.  244;  Booth  v.  Starr,  5  Day  (Conn.),  275. 

189  Brownfield  v.  Holland,  63   Wash.  86,  114  Pac.  890;   Elliott  v. 
Garvin,  166  Fed.  278. 

i»o  See  section  268,  supra. 

(458) 


Chap.  24]  PROVING  CLAIMS.  §  298 

live  in  the  one  state  is  not  binding  in  the  other.     The 
demand  must  be  formally  allowed.191 

A  nonresident  creditor  the  amount  of  whose  claim 
is  within  the  jurisdiction  of  the  federal  court  may 
maintain  an  action  thereon  in  such  court.192  It  must 
be  begun  within  the  time  fixed  by  the  county  court  for 
the  filing  of  claims  against  the  estate,193  and  the  judg- 
ment obtained,  when  filed  in  the  county  court,  becomes 
an  obligation  of  the  estate  enforceable  in  the  same 
manner  as  any  other  demand.194 

§  298.    Joint  claims. 

When  any  two  or  more  persons  shall  be  indebted 
upon  any  joint  contract  or  upon  a  judgment  founded 
upon  a  joint  contract,  and  either  of  them  shall  die,  his 
estate  shall  be  liable  therefor,  and  it  may  be  allowed 
as  if  the  contract  had  been  joint  and  several,  or  as  if 
the  judgment  had  been  against  him  alone;  and  the 
other  parties  to  such  contract  may  be  compelled  to  con- 
tribute or  pay  the  same,  if  they  would  have  been  liable 
to  do  so  upon  payn*?nt  thereof  by  the  deceased.195  This 
statute  changes  the  common-law  rule,  which  released 

191  Creswell  v.  Slack,  68  Iowa,  110,  26  N.  W.  42;  Stacy  v.  Thrasher, 
6  How.  (U.  S.)  57;  Talmadge  v.  Chappel,  16  Mass.  71;  Turner  v.  Risor, 
54  Ark.  33,  15  S.  W.  13;  McGarvey  v.  Darnall,  134  111.  367,  25  N.  E. 
1005. 

192  Union  Xat.  Bank  v.  Vaiden,  18  How.  (U.  S.)  503;  Lawrence  v. 
Nelson,  143  U.  S.  215,  12  Sup.  Ct.  Rep.  440. 

l»3  Security  Trust  Co.  v.  Black  River  Xat.  Bank.  187  U.  S.  211, 
23  Sup.  Ct.  Rep.  52;  Schurmier  v.  Connecticut  Mut.  Life  Ins.  Co.,  171 
Fed.  1. 

194  Connecticut  Mut.  Life  Ins.  Co.  v.  Schurmier  (Minn.),  147  N.  W. 
246. 

195  Rev.   Stats.,  c.   17,   S  160,    [1424]. 

(459) 


§  299  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

the  estate  of  a  deceased  obligor  on  a  joint  contract  from 
liability,196  and  makes  the  liability  of  the  estate  the 
same  on  both  joint  and  joint  and  several  contracts  as 
if  he  were  living. 

§  299.    Executor's  or  administrator's  claims. 

An  executor  or  administrator  having  a  claim  or  de- 
mand against  the  estate,  either  absolute  or  contingent, 
has  no  greater  privilege  in  regard  thereto  than  any 
other  party.  If  the  estate  is  solvent,  he,  of  course, 
receives  his  pay  in  full;  if  insolvent,  he  must  share  with 
the  other  creditors  his  proportion  of  the  loss.  There 
is  no  reason  why  he  should  not  be  called  upon  to  estab- 
lish his  demand  in  the  same  manner  he  would  be  ob- 
liged to  had  he  no  other  interest  in  the  estate,  and, 
when  the  estate  is  insolvent,  there  cannot  well  be  an 
order  of  payment  made  until  his  claim  is  proved.  In 
some  states  the  court  of  probate  jurisdiction  is  given 
by  statute  the  authority  to  appoint  a  special  adminis- 
trator to  represent  the  estate  on  such  hearings,  and  the 
common  law  recognized  the  authority  of  the  probate 
courts  to  make  such  appointment,  the  officer  being 
called  an  ' '  administrator  pendente  lite. ' '  If  the  execu- 
tor's  or  administrator's  claim  is  contested,  it  might 
be  for  the  interest  of  the  estate  for  the  court  to  appoint 
some  person  to  represent  the  estate  on  the  hearing,  but 
it  would  seem  that,  if  the  position  taken  by  the  per- 
sonal representative  was  so  antagonistic  to  the  estate, 
he  ought  to  be  removed,  and  someone  else  appointed. 

It  has  been  held,  the  estate  being  solvent,  the  per- 
sonal representative  may  retain  in  his  possession  suffi- 

.  »«  Pecker  v.  Julius,  2  Browne  (Pa.),  31. 
(460) 


Chap.  24]  PROVING  CLAIMS. 

cient  assets  of  the  estate  to  satisfy  his  demand,  and  the 
claim  need  not  be  presented  the  same  as  that  of  the 
others,197  the  validity  or  invalidity  of  the  claim  being 
determined  by  the  court  on  the  hearing  of  the  final 
account.198  Claims  for  expenses  incurred  by  the  execu- 
tor or  administrator  in  the  course  of  the  administra- 
tion are  passed  upon  in  his  final  account. 

Under  the  Oregon  practice,  the  county  court  or  judge 
has  authority  to  allow  the  claim  of  an  executor  or 
administrator.  Such  allowance  does  not  conclude  a 
creditor  or  person  interested  in  the  estate  in  any 
action,  suit  or  proceeding  between  such  executor  or 
administrator,  and  such  creditor,  heir  or  other  per- 
son.199 If  he  reject  the  claim,  either  in  whole  or  in 
part,  or  in  case  the  same  is  not  presented  for  allowance 
as  provided  by  law,  the  executor  or  administrator  may 
retain  the  amount  thereof  until  the  final  settlement  of 
his  accounts,  when  if  the  same  is  controverted,  or  ob- 
jected to  by  any  person  interested  in  the  estate,  the 
right  of  the  representative  to  have  the  same  allowed 
shall  be  tried  and  determined  by  the  court.  It  must  be 
presented  to  the  court  before  the  statute  of  limitations 
has  run  against  it.200 

§  300.    Contingent  claims. 

A  contingent  claim  against  an  estate  is  one  where 
the  liability  depends  upon  some  future  event,  which 
may  or  may  not  happen,  and  therefore  makes  it  now 
wholly  uncertain  whether  there  ever  will  be  a  liabil- 
ity. -(l]  It  is  a  demand  or  debt  which  is  not  then  abso- 

197  Sanderson's  Admrs.  v.  Sanderson,  17  Fla.  820. 

198  In  re  May,  45  Ch.  Div.  499. 

199  L.  O.  L.,  §  1246. 

200  L.  0.  L.,  §  1247. 

201  Sargent's   Estate   v.   Kimball's   Estate,   37   Vt.   321. 

(461) 


§  300  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

lute  or  certain,  but  depends  upon  the  occurrence  or 
nonoccurrence  of  some  event  after  the  death  of  the  tes- 
tator or  intestate.202  The  contingency  is  the  happen- 
ing of  the  event  and  not  the  time  of  its  happening.203 

The  principal  contingent  claims  are  those  growing 
out  of  liability  as  indorser,  guarantor  or  surety  upon 
commercial  paper,204  as  surety  on  bonds,  as  payer  of 
mortgage  notes,  and  the  statutory  liability  of  a  stock- 
holder in  a  banking  or  other  corporation.205 

If  any  person  shall  be  liable  as  security  for  the  de- 
ceased, or  have  any  other  contingent  claim  against 
his  estate  which  cannot  be  proved  as  a  debt,  the  same 
may  be  presented,  with  the  proper  proof,  to  the  county 
court,  which  if  satisfied  that  such  claim  is  a  legal  de- 
mand against  the  estate,  may  order  the  executor  or 
administrator  to  retain  in  his  hands  sufficient  to  pay 
such  contingent  claim,  when  the  same  shall  become 
absolute,  or,  if  the  estate  shall  be  insolvent,  sufficient 
to  pay  a  proportion  equal  to  the  dividends  of  other 
creditors.206  When  a  claim  is  so  filed  and  approved 
by  the  court  within  the  time  fixed  for  filing  absolute 
claims,  the  holder  places  himself  on  terms  of  proximate 
equality  with  the  holders  of  such  other  claims.207 

Under  the  Oregon  practice,  a  contingent  claim  may 
be  presented  and  allowed  the  same  as  any  other  de- 
mand. If  approved,  its  present  value  is  paid  into 
court  and  held  subject  to  the  happening  of  the  con- 

202  Stichter  v.  Cox,  52  Neb.  532,  72  N.  W.  848. 

203  Verdier  v.  Roach,  96  Cal.  467,  31  Pac.  554. 

204  Cockeril  v.  Hobson,  16  Ala.  391. 

205  Hazlett  v.  Blakeley's  Estate,  70  Neb.  613,  97  N.  W.  808. 

206  Rev.  Stats.,  c.  17,  §  141,  [1405]. 

207  Hazlett  v.  Blakeley,  70  Neb.  613,  97  N.  W.  808. 

(462) 


Chap.  24]  PROVING  CLAIMS.  §  301 

tingency.208     If  the  estate  is  insolvent,  it  would  neces- 
sarily prorate  with  other  claims. 

§  301.    Contingent  claims  becoming  absolute. 

A  contingent  claim  becomes  absolute  as  soon  as  the 
event  which  fixes  the  liability  of  the  estate  occurs.209 
The  claimant  may,  at  any  time  within  two  years  from 
the  time  limited  to  other  creditors  to  present  their 
claims,  present  his  demand,  which  the  court  had  pre- 
viously approved  as  a  contingent  obligation,  for  allow- 
ance as  a  proper  claim,  and  if  the  contingency  is  estab- 
lished by  due  proof,  it  may  be  allowed  and  ordered 
paid  in  whole  or  in  part  as  the  assets  of  the  estate  will 
permit.210 

The  supreme  court  has  said  that  it  was  a  question 
of  doubt  whether  a  contingent  claim  not  filed  as  such 
within  the  time  limited  other  creditors  to  present  their 
demands  can  be  subsequently  filed  and  allowed,  though 
it  did  not  accrue  or  become  absolute  until  after  the 
time  limited.211 

A  statute  was  enacted  in  1867  which  permits  a  claim- 
ant having  a  demand  which  shall  accrue  or  become 
absolute  at  any  time  after  the  time  limited  by  creditors 
to  present  their  claims  to  prove  the  same  in  the  county 
court  within  one  year  after  it  accrues  or  becomes  abso- 
lute.212 In  1901  the  statute  of  nonclaim  was  amended 
to  include  contingent  claims.  Previous  to  that  arnend- 

208  L.  O.  L.,  §  1301. 

209  Hazlett  v.  Blakeley,  70  Neb.  613,  97  N.  W.  808. 

210  Eev.   Stats.,   c.   17,    §§142,   143,    [1406],    [1407];   Brinkworth   v. 
Hazlett,  64  Neb.  502,  90  N.  W.  537. 

211  Burling  v.  Alvord,  77  Neb.  861,  110  N.  W.  683. 

212  Rev.  Stats.,  c.  17,  §  144,  [1408]. 

(463) 


§  302  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

ment  a  contingent  claim  filed  some  time  after  the  ex- 
piration of  the  time  fixed  in  the  notice  to  creditors  was 
held  a  proper  charge.213  The  doubtful  question  is,  Was 
section  144  repealed  by  implication  by  the  amendment  T 
It  was  clearly  the  intention  of  the  legislature  to  shut 
out  all  contingent  demands,  and  it  would  therefore 
seem  that  said  section  144  was  repealed  by  implication. 

Form  No.  138. 
ORDER  OF  COUNTY  JUDGE  ALLOWING  CONTINGENT  CLAIM. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  being  the  day  fixed  by 

the  court  for  the  hearing  of  the  contingent  claim  of  G.  H.  against 
sa;d  estate,  said  G.  H.  appeared  and  presented  evidence  in  support 
thereof,  and  C.  D.,  administrator  of  said  estate,  in  opposition  thereto; 
and  it  appearing  to  the  court  that  said  claim  was  a  contingent  one,, 
and  that  the  same  became  absolute  and  the  amount  thereof  deter- 
mined on  the  day  of  ,  19 — ,  and  that  said  claim  is  just 

and  a  just  demand  against  said  estate;  and  it  further  appearing  that 
said  administrator  has  not  in  his  possession  sufficient  assets  with 
which  to  pay  said  claim: 

It  is  therefore  ordered  that  said  claim  be  allowed  at  the  sum  of 

dollars    ($ ),    and    that    said    C.    D.,    administrator,    pay 

such  proportion  of  said  claim  from  the  assets  of  said  estate  now 
in  his  possession  as  he  may  have  the  funds  to  pay,  and,  if  any  real 
or  personal  estate  of  the  said  A.  B.  shall  afterward  come  into  his 
possession,  he  shall  pay  such  claim,  or  such  part  thereof  as  he  majr 
have  assets  to  pay,  within  thirty  days  after  said  assets  have  been, 
received  by  him. 

(Signed)     J.   K., 
County  Judge. 

§  302.    Contract  to  bequeath  or  devise  property, 

A  contract  by  which  a  party  agrees  for  a  considera- 
tion to  make  a  certain  disposition  of  either  real  or  per- 
sonal property  is  valid,  and  constitutes  an  obligation 

213  Hazlett  T.  Blakeley,  70  Neb.  613,  97  N.  W.  808. 
(464) 


Chap.  24]  PROVING  CLAIMS.  §  302 

of  his  estate.214  Such  consideration  is  usually  services 
performed  or  to  be  performed  by  claimant  for  dece- 
dent.215 The  execution  of  reciprocal  wills  by  both  hus- 
band and  wife,216  or  the  satisfaction  of  a  claim  or 
demand,217  are  also  sufficient  considerations. 

The  contract  may  be  oral,218  in  which  case  the  evi- 
dence to  establish  it  must  be  clear  and  satisfactory.21* 

The  rule  of  law  governing  enforcement  of  contracts 
to  devise  or  bequeath,  and  actions  for  breach  of  the 
same,  differs  somewhat  from  that  on  other  contracts. 
The  party  not  in  default  does  not  in  each  case  have  a 
choice  of  remedies.  If  the  consideration  is  a  definite 
amount  of  labor  performed  or  services  rendered  by  the 
claimant  and  the  value  of  the  same  can  be  ascertained, 

214  Hawkins  v.  Doe,  60  Or.  437,  119  Pac.  754;  Kelley  v.  Devin,  65  Or. 
215,   132   Pac.   535;   Van  Dyne  v.   Freeland,   12   N.  J.  Eq.   142;   Rivers 
v.  Rivers'  Exrs.,  3  Desaus.   (S.  C.)  190;  Wright  v.  Tinsley,  30  Mo.  389; 
Green  v.  Broylcs,  3  Humph.   (Tenn.)    167;   Wright  v.  Wright,  31  Mich. 
380;  Updike  v.  Tenbroeck,  32  N.  J.  L.  105;   Smith  v.  Smith's  Admrs.r 
28  N.   J.   L.   208. 

215  Kofka  v.  Rosicky,  41  Neb.  328,  59  N.  W.  788;   Damkroeger  v. 
James  (Neb.),  146  N.  W.  936;  Best  v.  Gralapp,  69  Neb.  811,  96  N.  W. 
641;  Teske  v.  Ditberner,  65  Neb.  167,  91  N.  W.  181;  Kelley  v.  Devin,. 
65  Or.  215,  132  Pac.  575. 

216  Brown  v.  Webster,  90  Neb.  591,  134  N.  W.  185. 

217  Clawson  v.  Brewer,  67  N.  J.  Eq.  201,  58  Atl.  598. 

218  Moline    v.    Carlson,    92    Neb.    419,    138    N.    W.    721;    Hespen    v. 
Wendcln,  85  Neb.  172,  122  N.  W.  852;  Harrison  v.  Harrison,  80  Neb. 
103,  113  N.  W.  1042. 

219  Kofka   v.    Rosicky,    41    Neb.    328;    Teske   v.    Ditberner,    65    Xeb. 
167,  91   N.   W.   181,   70  Neb.  544,  98  N.   W.  57;   Best  v.   Gralapp,  96 
Neb.   801,   96   N.  W.   641;   Pemberton   v.   Pemberton's   Heirs,   76   Neb. 
669,  107  N.  W.  996;  Peterson  v.  Bauer,  76  Neb.  652,  107  N.  W.  993; 
Moline  v.  Carlson,  92  Neb.  419,  138  N.  W.  621;  Labs  v.  Labs,  92  Neb. 
378,   138   N.   W.   561;    Damkroeger  v.  James    (Neb.),    146   N.  W.   936; 
Rose  v.  Oliver,  32   Or.  447,   52   Pae.   176;    Richardson  v.   Orth,   40   Or. 
232,  66  Pac.  925,  69  Pac.  494. 

30— Pro.  Ad.  ^465} 


§  303  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

and  a  payment  will  place  the  parties  in  the  same  posi- 
tion as  before,  specific  enforcement  cannot  be  had. 
The  remedy  of  the  claimant  is  to  file  his  demand  in 
court  and  recover  either  the  specific  amount  or  on  a 
quantum  meruit.  His  right  to  recover,  but  not  the 
amount  of  his  recovery,  is  based  on  the  contract.220 

§  303.    Consideration  for  contract. 

If  the  consideration  of  the  contract  is  services  ren- 
dered, and  they  are  of  such  a  character  that  it  is  im- 
possible to  estimate  their  value  by  any  pecuniary 
standard,  it  is  not  within  the  power  of  any  court,  after 
their  performance,  to  restore  the  party  to  the  same 
position  he  was  in  before  the  agreement  was  made  by 
awarding  him  damages,  and  his  remedy  is  by  bill  in 
equity  for  specific  performance.221  Under  this  rule 
full  performance  of  an  agreement,  by  a  son  of  full 
age  and  living  away  from  home,  to  return  with  his 
family  and  take  care  of  his  father  and  attend  to  his 
business,222  by  a  son,223  or  stepson,224  to  remain  at  home 
and  attend  to  his  parents'  affairs,  by  a  party  who  had 
lived  with  a  family  since  infancy  to  remain  on  the 
farm  of  decedent,225  in  consideration  of  receiving  cer- 

220  Hawkins  v.  Doe,  60  Or.  437,  117  Pac.  754;  Freeman  v.  Foss,  145 
Mass.  361,  14  N.  E.  141;  Ellis  v.  Carey,  74  Wis.  176,  42  N.  W.  252. 

221  Kofka  v.  Rosicky,  41  Neb.  328,  59  N.  W.  788;  Kelley  v.  Devin, 
65  Or.  215,  132  Pac.  535;  Rhodes  v.  Rhodes,  3  Sand.  Ch.   (N.  Y.)   279. 

2?2  Best  v.  Gralapp,  69  Neb.  811,  96  N.  W.  641,  99  N.  W.  837;  Harri- 
son v.  Harrison,  80  Neb.  103,  113  N.  W.  1042. 

223  O'Connor  v.  Waters,  88  Neb.  224,  129  N.  W.  261;  Teske  v.  Dit- 
berner,  65  Neb.  167,  91  N.  W.  181,  70  Neb.  544,  98  N.  W.  57;  Kelley 
v.  Devin,  65  Or.  215,  132  Pac.  535. 

224  Hespen  v.  Wendelen,  85  Neb.  172,  122  N.  W.  852. 

225  Moline  v.  Carlson,  92  Neb.  419,  138  N.  W.  721. 

(466) 


Chap.  24]  PROVING  CLAIMS.  §  304 

tain  specific  property  or  a  share  therein,  give  a  right 
to  enforce  the  same. 

The  same  principle  governs  a  like  contract  for  ser- 
vices for  any  elderly  person  if  performed  under  the 
same  conditions.226 

A  contract  made  between  deceased  and  the  parent 
of  an  infant,  by  the  terms  of  which  the  deceased  agreed 
to  adopt  the  minor  and  to  make  him  an  heir  with  others 
or  give  him  a  fixed  share  in  the  estate,  is  also  within 
the  rale  when  the  person  so  agreed  to  be  adopted  en- 
ters the  family  of  deceased  and  performs  the  usual 
duties  of  a  child.227  In  none  of  the  cases  last  cited  was 
the  claimant  formally  adopted. 

§  304.    Relief  granted. 

When  recovery  cannot  be  had  on  a  quantum  meruit 
or  actual  consideration  paid,  specific  performance  is 
claimant's  only  remedy.  An  action  for  damages  for 
breach  of  contract  to  convey  cannot  be  sustained.228 

Part  performance  of  such  contract  of  such  character 
that  the  court  cannot  restore  the  promisee  to  the  situ- 
ation he  was  in  when  the  agreement  was  made,  or  com- 
pensate him  in  damages,  takes  it  out  of  the  statute 
of  frauds.229  Evidence  that  the  promisor  expressly 

226  Brinton   v.  Van   Cott,  8  Utah,  480,  33  Pac.  218;   McKinnon  v. 
McKinnon,  56  Fed.  409;  Jaffee  v.  Jacobson,  4  U.  S.  App.  4,  1  C.  C.  A. 
24,  48  Fed.  21. 

227  Peterson  v.  Bauer,  83  Neb.  405,  119  N.  W.  764,  76  Neb.  661,  111 
X.  W.  361;   Pemberton  v.  Pemberton's  Heirs,  76  Neb.  669,  107  X.  W. 
993;  Kofka  v.  Rosicky,  41  Neb.  328,  59  N.  W.  788. 

228  Hertzog  v.  Hertzog,  34   Pa.  318;   Erben  v.  Lorillard,  19  N.  Y. 
299. 

229  Best  v.  Gralapp,  69  Neb.  811,  96  N.  W.  641;  Kelley  v.  Devin, 
65  Or.  215,  132  Pac.  535. 

(467) 


§  305  PROBATE  AND  ADMINISTRATION.  [Chap.  24: 

agreed  to  make  a  will  is  not  necessary.  An  agree- 
ment to  "give"  claimant  a  certain  piece  of  land  or  a 
certain  share  in  the  estate  is  sufficient.230 

It  was  formerly  held  that  where  the  contract  in- 
cluded property  in  which  the  surviving  spouse  had  a 
homestead  right,  it  was  enforceable,  and  the  value 
of  such  right  could  be  given  the  surviving  spouse  by 
the  decree.231  Under  the  present  holding  of  the  supreme 
court,232  it  would  only  be  enforceable,  if  at  all,  as  to 
the  estate  of  remainder,  unless  such  survivor  consented 
thereto.233 

Executors,  administrators,  heirs,  devisees  or  lega- 
tees of  the  promisor  take  the  property  impressed  with 
a  trust  in  favor  of  the  claimant.234  They  are  the  de- 
fendants, and  the  decree  against  them  should  be  for 
a  substantially  specific  performance.235 

§  305.    Writings  of  deceased  persons  as  evidence. 

The  book  entries  and  other  writings  of  a  person  de- 
ceased, made  at  or  near  the  time  of  the  transaction,  and 
when  the  deceased  was  in  a  position  to  know  the  facts 
therein  stated,  are  presumptive  evidence  of  such  facts 
when  the  entry  was  made  against  the  interest  of  the 
person  so  making  it,  or  when  made  in  a  professional 
capacity,  or  in  the  ordinary  course  of  professional  con- 

230  Kofka  v.  Rosicky,  41  Neb.  328,  59  N.  W.  788;  Moline  v.  Carlson, 
92  Neb.  419,  138  N.  W.  721. 

231  Teske  v.  Ditberner,  83  Neb.  701,  120  N.  W.  147. 

232  Meisner  v.  Hill,  92  Neb.  435,  138  N.  W.  583. 

233  Moline  v.  Carlson,  92  Neb.  419,  138  N.  W.  721. 

234  Bruce  v.  Moon,  57  S.  C.  60,  35  S.  E.  415;  Howe  v.  Watson,  179 
Mass.  30,  60  N.  E.  415;  Smith  v.  Pierce,  65  Vt.  200,  25  Atl.  1092. 

235  Wright  v.  Tinsley,  30  Mo.  389. 

(468) 


Chap.  24]  PROVING  CLAIMS.  §  306 

duct,  or  when  in  the  performance  of  a  duty  especially 
enjoined  by  law.236  The  above  is  declaratory  of  the 
common-law  rule.  It  must  be  shown  that  such  writ- 
ings are  original,  contemporaneous,  and  in  the  line  of 
the  writer's  duty,237  or  when  he  was  in  a  position  to 
know  the  facts  therein  stated,  that  they  were  in  his 
handwriting,238  and  that  they  were  found  among  his 
possessions. 

The  ]  (resumption  is  that  the  books  of  account  of  a 
deceased  person,  or  the  records  which  he  made  in  any 
official  capacity,  were  regularly  kept  by  him,  and  are 
true  statements  of  the  transactions  therein  set  forth. 
If  testimony  is  subsequently  introduced  which  raises 
any  question  as  to  the  validity  or  authenticity  of  the 
writings,  it  is  for  the  judge  to  determine,  or,  in  the 
case  of  an  appeal  to  the  district  court,  for  the  jury 
under  proper  instructions  from  the  court.239 

§  306.    Extending  time  for  presentation  of  claims. 

The  court  may  extend  the  time  allowed  to  creditors 
to  present  their  claims,  as  the  circumstances  of  the 
case  may  require;  but  not  so  that  the  whole  time  shall 
exceed  two  years.240  The  application  must  be  filed 
within  six  months  from  the  expiration  of  the  time  first 

236  Civ.  Code,  §3o4;  L.  O.  L.,  §  798;  Susewind  v.  Lever,  37  Or.  367, 
61  Pac.  644. 

237  Wharton,  Evidence,  §  233;  1  Greenleaf,  Evidence,  §  115. 

238  Welsh  v.  Barrett,  15  Mass.  380;  Inhabitants  of  Augusta  v.  In- 
habitants   of    Windsor,   19    lie.    317;    Van    Swearingen   v.  Harris,   1 
Watts  &   S.   (Pa.)   356. 

239  Qdell  v.   Culbert,   9   Watts   &   S.    (Pa.)    66;   Van  Swearingen  v. 
Harris.  1  Watts  &   S.   (Pa.)   356. 

240  Rev.  Stats.,  c.   17,  §  121,   [13S5]. 

(469) 


§  306  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

fixed.241  It  should  be  by  petition,  under  oath,  setting 
up  the  demand,  the  reasons  why  it  was  not  filed  pre- 
viously, and  show  that  the  applicant  has  not  been 
guilty  of  laches  and  has  exercised  due  diligence.242 

Notice  of  the  filing  of  the  application  and  the  date 
set  for  its  hearing  should  be  given  the  executor  or  ad- 
ministrator as  the  court  may  direct. 

The  court  has  no  power  to  file  the  claim  until  after 
a  hearing  has  been  had  and  leave  granted.  The  appli- 
cant must  show  that  his  neglect  was  due  to  such  rea- 
sons as  lack  of  notice  of  the  death  of  deceased  and 
unavoidable  mistake  or  accident,  or  fraud.  The  rule 
is  that  the  showing  must  be  such  as  would  warrant  a 
court  in  setting  aside  a  judgment  and  granting  a  new 
trial  in  ordinary  cases,243  and  the  order  will  not  be  dis- 
turbed if  it  appeared  that  the  court  acted  with  dis- 
cretion.244 The  equities  of  the  case,  must  be  very 
strong,  however,  to  justify  a  court  in  granting  the  ap- 
plication where  a  long  time  was  given  in  the  first  no- 
tice, and  the  personal  representative  has  rendered  his 
account.245 

241  Eev.  Stats.,  c.  17,  §  122,   [1386] ;  Fitzgerald  v.  First  Nat.  Bank, 
64  Neb.  260,  89  N.  W.  813.     A  strong  dissenting  opinion  was  filed  in 
this  case,  a  minority  of  the  court  holding  that  section  121  gave  the 
county  court  the  power  to  allow  a  claim  to  be  filed  and  to  act  on  it, 
on  proper  application  at  any  time  within  two  years. 

242  Gilchrist  v.  Eea,  9  Paige  (N.  Y.),  66;  State  v.  Ramsey  Co.  Pro- 
bate Court,  42  Minn.  54,  43  N.  W.  692. 

243  Nebraska  Wesleyan  University  v.  Bowen,  73  Neb.  598,  103  N.  W. 
275. 

244  Kibble  v.  Furmin,  71  Neb.  108,  98  N.  W.  420. 

245  Hazlett   v.   Burge,   22   Iowa,   531;   Amsbaugh   v.   Exchange   Bank, 
33  Kan.  100,  5  Pac.  384. 

(470) 


Chap.  24]  PROVING  CLAIMS.  §  307 

Form  No.  139. 

APPLICATION  FOR  ORDER  EXTENDING  TIME  FOB  HEARING 

CLAIMS. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
he  is  a  resident  of  Chicago,  Illinois,  and  has  resided  therein  for  more 
than  three  years  last  past;  that  said  estate  is  indebted  to  said  peti- 
tioner in  the  sum  of  $ on  a  certain  promissory  note  executed 

and  delivered  by  said  A.  B.  to  said  petitioner  on  the  day  of 

,   19 — ,   and  which   said   note   became  due   and  payable  on   the 

day  of ,  19 — ,  at  the bank,  in  the  city  of  Chicago 

aforesaid;  that  petitioner  had  no  knowledge  whatever  of  the  death 
of  said  A.  B.  or  of  the  appointment  of  an  administrator  of  his  said 
estate  or  of  the  notice  to  creditors  to  present  their  claims  against 

said  estate  until  ,  19 — ,  when  he  was  informed  that  said  A.  B. 

had  been  dead  for  more  than  six  months  and  that  the  time  fixed  for 
filing  claims  against  said  estate  had  expired;  that  said  A.  B.  left 
no  estate  within  the  state  of  Illinois,  and  that  unless  your  petitioner 
be  permitted  to  establish  the  amount  of  his  said  claim  in  this  court, 
he  will  be  unable  to  recover  said  sum  of  money  so  due  from  said  estate. 

Your  petitioner  therefore  prays  that  an  order  be  made  and  entered 
by  said  court  extending  the  time  for  presentation  of  claims  against 
said  estate  for  days. 

Dated  this day  of ,  19 — . 

(Signed)     C.  D. 

[Add   verification.] 

§  307.    Order  extending  time  for  filing  claims. 

If  the  reasons  why  the  claim  was  not  previously 
presented  appear  to  the  court  satisfactory,  an  order  is 
made  extending  the  time,  not  to  exceed  three  months, 
and  notice  thereof  is  given  in  such  manner  as  the  court 
may  direct.246 

It  has  been  held  under  a  statute  like  our  own  that 
the  extension  operates  for  the  benefit  of  the  applicant 
alone,  and  that  any  other  belated  creditor  must  make 

246  Rev.  Stats.,  c.  17,  §  122,  [1386], 

(471) 


§  308  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

his  application  also.  The  court  has  no  power  to  allow 
a  claim  after  the  time  first  fixed  has  expired  unless 
an  order  for  the  hearing  of  such  claim  has  been  en- 
tered.247 

The  order  is  a  final  one,  and  an  appeal  on  it  will  lie 
to  the  county  court.248 

Form  No.  140. 

ORDEE    GRANTING   TIME   TO   FILE   A    CLAIM. 
[Title  of  Cause  and  Court]. 

Now  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  C.  D.  to  extend  the  time  for  filing  claims 
against  said  estate,  the  answer  of  E.  F.,  administrator  of  said  estate, 
and  the  evidence  was  submitted  to  the  court. 

On  consideration  whereof  the  court  finds  that  the  said  petitioner 
has  not  been  guilty  of  laches  and  that  the  prayer  of  said  petition 
should  be  granted. 

It  is  therefore  ordered  that  said  C.  D.  be  given  leave  to  file  said 

claim  within  ten  days  and  the  same  be  set  for  hearing  on  the  

day  of  ,  19—,  at  the  hour  of  9  A.  M. 

(Signed)     J.  K., 
County  Judge. 

§  308.    Order  allowing  claims. 

The  order  of  the  county  court  allowing  a  claim  of 
a  creditor  as  a  proper  demand  against  the  estate  is 
valid  and  binding,  and  has  the  force  and  effect  of  a 
judgment  against  the  estate  until  appealed  from,  or 
reversed  or  vacated  in  some  of  the  modes  prescribed  by 
statute.249 

247  McGee  v.  McDonald's  Estate,  66  Mich.  628,  33  N.  W.  737. 

248  Bibble  v.  Furmin,  71  Neb.  198,  98  N.  W.  420. 

249  McGrew   v.   State   Bank   of   Humboldt,   60   Neb.   716,   84   N.   W. 
S9;  McCormick  v.  McCormick,  53  Neb.  255,  73  N.  W.  693;  Patton  v. 

(472) 


Chap.  24]  PROVING  CLAIMS.  §  308 

It  is  not  necessary  that  any  formal  judgment  be  en- 
tered for  the  payment  of  each  separate  demand.  The 
order  should  show  the  amount  demanded  by  each 
claimant,  the  amount  allowed,  the  amount  disallowed, 
setoff  allowed,  the  balance  in  favor  of  the  claimant  or 
the  estate,  and  also  whether  notice  of  appeal  was  given 
or  appeal  taken  either  by  the  claimant  or  the  estate. 
It  should  be  signed  by  the  judge  and  recorded,  and 
though  such  record  may  be  lacking  in  some  recitals, 
such  as  appearance  of  parties,  and  even  if  unsigned,  if 
properly  entered  and  showing  the  date  and  amount 
allowed,  it  is  sufficient.250  It  should  include  claims  for 
debts  only.  Claims  of  an  executor  or  administrator 
for  expenses  and  disbursements  belong  in  his  final 
account.251 

Where  it  appears  that  all  the  statutory  steps  have 
been  taken  to  give  the  court  jurisdiction,  it  cannot 
be  impeached  in  a  collateral  proceeding  except  for 
fraud.252 

During  the  term  at  which  it  was  entered  the  court 
has  power,  on  application  of  an  interested  party,  and 
notice  to  the  executor  or  administrator,  to  vacate  the 
order,253  or  may  modify  the  same  for  good  and  sufii- 

Bostwick,  39  Mich.  218;   Stone  v.  Wood,  16  HI.  177;  Yeatman  v.  Yeat- 
man,  35  Neb.  422,  53  N.  W.  385. 

250  McCormiek  v.  McCormick,  53  Neb.  255,  73  N.  W.  693;  Yeatman 
v.   Yeatman,   35   Neb.   422,   53   N.   W.   385;    Scott   v.   Rohman,   43   Neb. 
618,  62  N.  W.  46. 

251  Erickson  v.  Nyblom,  78  Neb.  642,  111  N.  W.  356. 

252  State  v.  Ramsey  Co.  Probate  Court,  25  Minn.  25;  Shoemaker  v. 
Brown.  10  Kan.  385;  Baker  v.  Rust,  37  Tex.  242. 

253  Brusha  v.  Hawke,  87  Neb.  254,  126  N.  W.  1079. 

(473) 


§  308  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

cient  reasons  on  notice  to  such  personal  representa- 
tive.254 

After  the  term  and  after  the  time  for  appeal  has 
expired  he  may  have  a  claim  allowed  in  his  absence 
and  to  which  he  has  a  good  defense  set  aside  by  bill 
in  equity,255  or  may  have  the  order  vacated  or  modified 
by  general  proceedings  under  the  Civil  Code  to  set 
aside  judgments.256 

An  executor,  administrator,  heir,  legatee  or  devisee 
may  appeal  to  the  district  court.257 

Form  No.  141. 
ORDER  OF  COUNTY  JUDGE  ALLOWING  CLAIMS. 

[Title  of  Cause  and  Court.] 

Now  on  this  day  of  ,  19 — ,  came  C.  D.,  administrator 

of  said  estate,  in  person  and  by  E.  F.,  his  attorney;  and  due  proof 
having  been  made  before  me  of  the  following  claims,  showing  them 
to  be  just  and  lawful  demands  against  the  estate  of  A.  B.,  deceased, 
I  therefore  adjust,  allow  or  disallow,  respectfully,  the  personal  claims 
heretofore  filed  against  the  estate,  in  favor  of  or  against  the  several 
persons  hereinafter  named,  as  set  forth  in  the  several  columns  oppo- 
site their  respective  names.  The  first  column  contains  the  names  of 
the  creditors  of  the  said  estate,  and  the  character  of  their  claim; 
the  second  shows  the  amount  claimed;  the  third  shows  the  amount 
allowed;  the  fourth  shows  the  amount  disallowed;  the  fifth  shows  the 
amount  of  setoff  filed  on  behalf  of  the  estate  against  such  claim; 
the  sixth  shows  the  amount  of  setoff  disallowed;  the  seventh  shows 
the  balance  in  favor  of  the  creditors;  the  eighth  shows  the  balance 

254  Dundas  v.  Christian,  25  Neb.  495,  41  N.  W.  449. 

255  Dundas  v.  Christian,  25  Neb.  495,  41  N.  W.  449. 

256  Civ.   Code,   §§  648,   656;   McGrew   v.   State  Bank   of  Humboldt, 
60  Neb.  716,  84  N.  W.  99. 

257  Rev.  Stats.,  c.  17,  §§  252,  271,  [1516],  [1535]. 

(474) 


Chap.  24] 


PROVING    CLAIMS. 


§308 


in   favor  of  the  estate;   the  ninth  shows  how  notice  was  given  the 
claimants. 


OB 

T3 

_ 

O 

o 

Names  of 
Creditors  and 
Character  of 
Claims 

Amount 
Claimed 

Amount 
Allowed 

Amount 
Disallowed 

Amount  of 
3toff  Claime 

Amount  of 
jtoff  Allowe 

Balance  in 
or  of  Credit 

Balance  in 
ivor  of  Esta 

Notice, 
How  Given 

02 

02 

oa 

And  it  satisfactorily  appearing  to  the  court  from  the  proof  on 
file  that  due  notice  as  required  by  law  has  been  given  of  the  time 
and  place  designated  for  the  hearing  of  claims  against  said  estate, 
and  it  further  appearing  that  said  A.  B.,  administrator  as  aforesid, 
has  sufficient  funds  in  his  hands  belonging  to  said  estate  to  pay  all 
the  debts  allowed  against  said  estate  in  full:* 

It  is  therefore  ordered  and  decreed  that  said  A.  B.,  administrator 
as  aforesaid,  pay  all  the  debts  in  full  above  allowed  against  said 
estate,  together  with  interest  thereon  at  the  rate  of  seven  per  cent 
per  annum,  to  the  persons  respectively  entitled  to  the  same. 

Dated  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

F6rm  No.  142. 

ORDER   BARRING   CLAIMS. 
[Title  of  Cause  and  Court.] 

Whereas,  it  appears  from  the  records  and  files  in  the  above-entitled 
matter  that  notice  to  creditors  to  present  their  claims  and  demands 
against  said  estate  has  been  given  pursuant  to  the  order  of  the  court 
heietofore  issued  by  publication  thereof  for  four  successive  weeks 

in  the  ,  a  newspaper  printed  and  published  in  said  county,  and 

by  posting  the  same  in  three  conspicuous  places  in  said  county,  and 
that  the  time  fixed  by  the  court  for  the  presentation,  adjustment  and 

(475) 


§  308  PROBATE  AND  ADMINISTRATION.  [Chap.  24 

allowance  of  claims  against  said  estate  has  expired,  it  is  therefore 
ordered  that  all  claims  against  said  estate,  not  now  on  file  in  said 
court,  excepting  only  such  as  are  not  required  by  law  to  be  presented 
for  allowance,  be  and  the  same  are  hereby  forever  barred. 

Dated  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

The  effect  of  a  judgment  or  decree  against  an  execu- 
tor or  administrator  on  account  of  a  claim  against  an 
estate  of  a  decedent  is  only  to  establish  the  claim,  as 
if  it  had  been  allowed  by  him,  unless  in  an  action 
brought  on  a  claim  filed  more  than  six  months  after 
his  appointment  it  is  alleged  in  the  complaint  and 
found  to  be  true  that  the  representative  has  assets  in 
his  hands  applicable  to  the  satisfaction  of  the  claim,  in 
which  case  a  personal  judgment  or  decree  may  be  en- 
tered.258 If  he  suffers  judgment  against  himself  and 
a  subsequent  depreciation  in  value  of  the  assets  makes 
them  insufficient,  equity  will  relieve  him,  but  not  if  the 
deficiency  existed  at  the  time  and  though  on  account 
of  a  lack  of  knowledge  of  the  estate  or  a  miscalcula- 
tion he  believed  them  sufficient.259 

258  L.  O.  L.,  §§  387,  1243. 

259  Brenner  v.  Alexander,  16  Or.  351,  19  Pac.  9. 

(476) 


CHAPTER  XXV. 

SALES  OF  REAL  ESTATE  FOR  PAYMENT  OF  DEBTS. 

§  309.  Creditor's  Lien  on  Realty. 

310.  Duty  of  Executor  or  Administrator  to  Procure  License. 

311.  Nature  of  Proceedings. 

312.  When   and   Where  Petition  Filed. 

313.  Necessary  Parties  to  Proceeding. 

314.  Necessary    Allegations   of   Petition. 

315.  Desciiption    of    Lands. 

316.  Older   to   Shbw    Cause. 

317.  Service  of  Order  to  Show  Cause. 

318.  Payirent  of  Debts  to  Prevent  Sale. 

319.  Hearing   on   the    Application. 

320.  Hearing — Insufficiency  cf   Personal  Property. 

321.  Hearing — Debts  and  Expenses  of  Administration. 

322.  Hearing — Lands  Subject  to  Sale. 

323.  Order   of  Sale  or  License. 

324.  Additional  Bond. 

325.  Notice  of  Sale. 

326.  Sale   Subject  to  Liens. 

327.  Oath  of  Executor  or  Administrator. 

328.  Sale. 

329.  Adjournment   of   Sale. 

330.  Executor  or  Administrator  not  to  be  a  Purchaser. 

331.  Confirmation  of  Sale. 

332.  Confii nation   of   Sale— Concluded. 

333.  Sale  of  Contract  Interest  in  Land. 

334.  Death   of  Executor  or   Administrator  Pending  Proceedings. 

335.  Sales  by  Foreign   Executors  or  Administrators. 

336.  Taxation  of  Costs. 

337.  Executor's  or  Administrator's  Deed. 

338.  Title  of  Purchaser. 

339.  Sale  of  Property  in  Which  a  Homestead  is  Included. 

§  309.    Creditor's  lien  on  realty. 

Personal  property  is  the  primary  fund  from  which 
the  debts  of  an  estate,  and  all  the  costs  and  expenses 
of  administration,  should  be  paid.  When  the  person- 

(477) 


§  310  PROBATE  AND  ADMINISTRATION.  [Chap.  25 

ally  is  insufficient,  then  the  real  estate  becomes  liable. 
In  the  interests  of  the  creditors,  and  of  the  executor 
or  administrator  who  has  necessarily  incurred  costs 
and  expenses  in  connection  with  the  administration,  all 
lands  of  which  any  decedent  died  seised,  except  the 
homestead  exemption,  may  be  sold  by  the  executor  or 
administrator,  under  the  license  of  the  district  court, 
for  the  purpose  of  raising  a  fund  with  which  to  pay 
the  debts  of  the  estate,  allowances  for  the  support  of 
the  family  and  other  costs  and  expenses  of  adminis- 
tration, including  the  inheritance  tax.1 

The  death  of  a  debtor  gives  his  creditor  a  quasi  lien 
on  the  former's  real  estate,  which  is  established  by  the 
grant  of  letters  testamentary  or  of  administration,  and 
the  allowance  of  the  claim,  and  enforced  by  a  sale 
under  order  of  the  court,  and  no  act  of  the  heir  or 
devisee  can  deprive  him  of  such  lien.  A  purchaser 
from  such  heir  or  devisee  pending  the  administration 
of  the  estate  takes  a  title  subject  to  such  rights  of 
creditors  therein,  even  though  the  executor  or  admin- 
istrator consented  to  the  sale.2 

§  310.    Duty  of  executor  or  administrator  to  procure 
license. 

A  creditor  is  not  obliged  to  take  any  action  himself 
in  order  to  have  the  right  which  he  established  in  the 

1  Bakes  v.  Brown,  34  Neb.  304,  51  N.  W.  848;   Eev.  Stats.,  c.  17, 
§§  1,  180,   [1265],  [1446];  L.  O.  L.,  §  1252;  Howe  v.  Kern,  63  Or.  506, 
125   Pac.   838;    Houck   v.   Myers,   23   Or.   10,    17   Pac.   461;    Smith    v. 
Whiting,  55  Or.  398,  106  Pac.  793. 

2  Watkins  v.  Holman,  16  Pet.   (U.  S.)   25;  Farran  v.  Robinson,  17 
Ohio  St.  12;  McCoy  v.  Morrow,  18  111.  519;  Moncrief  v.  Moncrief,  73 
Ind.  487;  Westbrook  v.  Munger,  64  Miss.  575,  1  South.  750;  Stiver  v. 
Stiver,  8  Ohio  St.  221. 

(478) 


Chap.  25]  SALES  OF  LANDS.  §  311 

decedent's  real  estate  by  proving  his  claim  in  county 
court  enforced  by  a  sale  of  the  lands.  If  the  person- 
alty of  a  testator  is  insufficient  to  pay  his  debts,  and 
the  costs  and  expenses  of  the  administration  of  his 
estate,  including  the  inheritance  tax,  and  the  executor 
has  a  power  of  sale  given  him  by  the  will,  it  is  his  duty 
to  proceed  to  sell  enough  lands  to  meet  such  payments, 
and  account  for  the  proceeds  in  his  annual  or  final 
accounting.  If  the  will  gives  him  no  power  of  sale,  he 
is  on  the  same  footing  in  regard  to  sales  of  real  estate 
as  an  administrator,  and  it  is  the  duty  of  either,  when 
the  personal  estate  in  his  hands  is  insufficient  to  pay 
such  debts,  costs  and  expenses,  to  procure  a  license 
from  the  court  and  sell  lands.3  The  duty  is  impera- 
tive, and  if  he  refuse  or  neglect  to  make  the  applica- 
tion, a  creditor  may  have  a  writ  of  mandamus  to  com- 
pel him  to  act.4 

§  311.    Nature  of  proceeding. 

The  proceeding  for  the  sale  of  a  decedent's  real 
estate  for  the  payment  of  his  debts  is  a  special  and 
statutory  one.  It  is  a  proceeding  in  rem,  where  the 
principal  questions  involved  are  the  amount  of  the 
debts  outstanding  against  the  estate,  the  amount  of 
personal  property  available  for  their  payment  and  the 
necessity  for  selling  the  land  to  raise  a  fund  for  such 
payment.  It  is  not  adversary  in  its  character,  in  the 
sense  in  which  the  term  is  used  in  actions,  as  only  so 
much  of  the  estate  descends  to  the  heirs  or  passes  to 

3  Kev.  Stats.,  c.  17,  §  182,  [1446];  L.  O.  L.,  §  1252. 

4  Clement  v.  Cozart,  109  N.  C.  173,  13  S.  E.  862. 

(479) 


§  312  PEOBATE  AND  ADMINISTRATION.          [Chap.  25 

the  devisees  as  remains  after  the  debts  and  expenses 
are  paid.5 

Jurisdiction  of  the  proceeding  is  given  the  judge  of 
the  district  court  of  the  county  in  which  letters  testa- 
mentary or  of  administration  were  granted,6  except 
when  brought  by  a  foreign  personal  representative. 
In  such  case  it  is  brought  in  the  county  where  the  land 
is  situated.7 

Under  the  Oregon  practice,  the  county  court  of  the 
county  having  jurisdiction  of  the  administration  has 
jurisdiction  of  sales  of  real  estate.8  The  proceeding  is 
there  held  to  be  one  hostile  or  adverse  as  to  the  heirs.9 

§  312.    When  and  where  petition  filed. 

The  proceedings  for  such  sale  of  real  estate,  when 
instituted  by  a  resident  executor  or  administrator,  are 
commenced  by  presenting  a  petition  to  the  district 
court  of  the  county  in  which  he  was  appointed,  setting 
forth  the  amount  of  personal  property  that  has  come 
into  his  hands,  and  how  much,  if  any,  remains  undis- 
posed of,  the  debts  outstanding  against  the  estate,  as 

5  Mr-Clay  v.  Foxworthy,  18  Neb.  295,  25  N.  W.  86;  Bixby  v.  Jewell, 
72  Neb.  755,  101  N.  W.  1026;  Miller  v.  Hanna,  89  Neb.  224,  131  N.  W. 
226. 

6  Rev.  Stats.,  c.  17,  §  183,  [1442]. 

7  Section  335,  post.     Under  former  statutes  the  old  probate  court 
had  jurisdiction  of  such  matters.     On  account  of  the  fact  that  many 
probate  judges  were  not  "learned  in  the  law,"  irregularities  occurred 
so  frequently  making  the  sales  void  for  lack  of  jurisdiction,  that  pur- 
chasers were  unwilling  to  pay  a  reasonable   price,  so  that  the   sole 
power   to   grant   such   licenses   and   confirm   the    sales   was   given   the 
district  judge. 

8  L.  O.  L.,  §  936. 

9  Fisk  v.  Kellogg,  3  Or.  508;  Smith  v.  Whiting,  55  Or.  393,  106  Pac. 
790. 

(480) 


Chap.  25]  SALES  OF  LANDS.  §  312 

far  as  the  same  can  be  ascertained,  a  description  of 
all  the  real  estate  of  which  the  testator  or  intestate 
died  seised,  and  the  condition  and  value  of  the  re- 
spective portions  or  lots.10 

It  may  be  presented  at  a  session  of  the  district  court, 
or  at  chambers  anywhere  within  the  judicial  district, 
no  matter  in  what  county  the  lands  are  located.11  It 
need  not  be  filed  until  later,  but  when  presented  at 
chambers  must  be  filed  as  soon  as  practicable  in  the 
office  of  the  clerk  of  the  county  in  which  the  executor 
or  administrator  received  his  letters,  and  such  filing 
is  jurisdictional.12 

There  is  no  time  fixed  within  which  the  proceeding 
must  be  brought,  except  the  general  one  that  it  must 
be  commenced  within  a  reasonable  time  after  the  per- 
sonal representative  becomes  acquainted  with  the  cir- 
cumstances and  conditions  of  the  estate.  An  executor 
or  administrator  may  know  very  soon  after  his  ap- 
pointment whether  such  sale  will  be  necessary,  and  it 
may  be  several  years  before  he  can  definitely  say  that 
he  is  unable  to  collect  enough  assets  to  pay  off  all  de- 
mands.13 Where  the  cause  of  the  delay  was  satisfac- 
torily explained  to  the  court,  a  license  was  granted 
seven  years  after  the  death  of  the  decedent,14  and  one 
thirteen  years  after.15  A  delay  of  fourteen  years  was 

10  Bev.  Stats.,  c.  17,  §  183,  [1447]. 

11  Eev.  Stats.,  c.  17,  §  187,  [1451];  Stack  v.  Eoyce,  34  Neb.  383,  52 
N.  W.  675. 

12  Veeder  v.  McKinley-Lanning  L.  &  T.  Co.,  61  Neb.  892,  86  N.  W. 
982;  Stack  v.  Eoyce,  34  Neb.  383,  52  N.  W.  675. 

13  Hall  v.  Woodman,  49  N.  H.  295;  Smith  v.  Dutton,  16  Me.  308; 
Gunby  v.  Brown,  86  Mo.  253. 

14  Bursen  v.  Goodspeed,  60  111.  277. 

15  McCrary  v.  Tasker,  41  Iowa,  255. 

31— Pro.  Ad. 


§  313  PROBATE  AND  ADMINISTRATION.          [Chap.  25 

held  sufficient  cause  for  dismissing  the  petition,  no 
explanation  of  the  delay  being  made.10  A  longer  delay 
in  filing  the  petition  is  permissible  when  the  lands  still 
remain  in  the  possession  of  the  personal  representa- 
tive, or  the  heir  or  devisee,  than  when  it  has  passed 
from  their  possession  into  the  hands  of  a  purchaser;17 
and  if  it  should  appear  that  the  delay  was  caused  by 
the  laches  of  the  personal  representative,  the  petition 
should  be  dismissed.18 

It  must  be  filed  within  the  time  limited  for  the  pay- 
ment of  debts.19 

§  313.    Necessary  parties  to  the  proceeding. 

If  there  are  two  or  more  executors  or  administrators, 
they  must  all  join  in  the  petition,  the  words  "executor 
or  administrator"  as  used  in  the  statute  referring  to 
all  those  who  have  qualified  and  are  acting  as  such.20 

The  proceeding,  though  in  rem,  is  not  ex  parte.  By 
statute  all  persons  interested  in  the  estate  are  made 
parties  to  the  same,  and  service  of.  process  must  be 
had  upon  them.21  The  names  and  relationship  of  the 
heirs,  the  names  of  the  devisees  and  who,  if  any,  are 
minors,  should  be  given.  If  the  decedent  was  intes- 
tate or  the  land  sought  to  be  sold  a  lapsed  or  void 
devise,  not  passing  into  the  residuary  estate,  they  with 

l«  Jackson  d.  Jenkins  v.  Eobinson,  4  Wend.  (N,  Y.)  436. 
IT  Ferguson  v.  Scott,  49  Miss.  500. 

18  Wolf  v.  Ogden,  66  111.  224;  In  re  Godfrey's  Estate,  4  Mich.  308; 
Crosby's  Estate,  55  Cal.  574;  Hatch  v.  Kelly,  63  N.  H.  29. 

19  See  Rev.  Stats.,  c.  17,  §  128,  [1392]. 

20  Hannum  v.  Day,  105  Mass.  33. 

21  Rev.  Stats.,  c.  17,  §  184,   [1448];  L.  O.  L.,  §1255;  Fiske  v.  Kel- 
logg, 3  Or.  503;  Howe  v.  Kern,  63  Or.  501,  125  Pac.  837,  128  Pac.  819. 

(482) 


Chap.  25]  SALES  OF  LANDS.  §  314 

the  surviving  spouse22  are  the  only  interested  parties.23 
In  Oregon  the  widow  is  not  a  necessary  or  even  a 
proper  party.24  In  the  case  of  the  sale  of  devised  land 
the  devisees  are  the  only  persons  interested,25  and 
where  the  decedent  was  intestate  and  left  no  heirs  or 
widow,  the  state  is  the  only  such  party.26  Purchasers 
pending  administration  are  frequently  made  parties, 
but  they  are  not  in  position  to  interpose  any  defense.27 

On  account  of  the  proceeding  being  in  rem,  failure  to 
name  all  the  interested  parties  in  the  petition  would 
not  render  the  sale  void  or  subject  to  collateral  attack, 
but  would  be  taken  advantage  of  by  the  parties  on  the 
hearing.28 

When  service  of  the  order  to  show  cause  is  waived, 
or  when  the  applicant  prays  for  personal  service  in- 
stead of  the  usual  publication,  the  petition  must  give 
the  names  and  relation  to  the  estate  of  all  the  inter- 
ested parties,  and  who,  if  any,  are  minors.29 

§  314.    Necessary  allegations  of  petition. 

The  essential  fact,  which  must  be  set  up  in  the  peti- 
tion and  established  to  the  satisfaction  of  the  district 

22  McLaughlin   v.   McCumber,   36   Pa.   14;   Simonton   v.   Brown,   72 
N.  C.  46. 

23  Lessee  of  Adams  v.  Jeffries,  12  Ohio  St.  253;  Fiske  v.  Kellogg, 
3  Or.  503;  Gibson  v.  EoTl,  30  111.  172;  Patterson  v.  Hamilton,  26  Hun 
(X.  Y.),  665;  Winston  v.  McClendon,  45  Miss.  254. 

24  In  re  Smith's  Estate,  43  Or.  595,  73  Pac.  336,  75  Pae.  113. 

25  William's  Devisees  v.  Williams'  Admr.,  49  Ala.  439. 
20  TrafTor.1  v.  Young,  3  Tenn.  Ch.  496. 

27  Gibson  v.  Prits,  69  X.  C.  155. 

28  Lyons  v.  Hamer,  94  Ala.  197;  Neville  v.  Kinney,  125  Ala.  i49.  23 
South.   oJ2;    Morris  v.   Hogle,  37   111.   150.     See   McClay  v.   Foxworthy, 
18  Xeh.  295,  25  X.  W.  86. 

29  Howe  v.  Kern,  63  Or.  496,  128  Pac.  819;  Smith  v.  Whiting,  55  Or. 
393,  106  Pac.  790. 

(483) 


§  314  PEOBATE  AND  ADMINISTRATION.          [Chap.  25 

court  at  the  final  hearing,  is  that  the  personal  assets 
of  the  estate  are  clearly  insufficient  to  pay  the  debts, 
allowances  for  the  support  of  the  family,  and  the 
charges  of  administration  and  inheritance  tax.30  The 
necessity  for  resorting  to  the  real  estate  for  the  pay- 
ment of  such  debts  and  expenses  must  appear  affirm- 
atively upon  the  face  of  the  petition.31 

The  amount  of  the  personalty  received  by  the  execu- 
tor or  administrator  should  be  set  out  in  full, — not 
necessarily  by  items,  but  the  total  should  be  given.  A 
reference  to  the  inventory  or  appraisement  for  the  pur- 
pose of  showing  the  amount  collected  is  insufficient,32 
and,  if  either  the  whole  or  a  part  of  the  personal  estate 
has  been  applied  to  the  payment  of  the  debts,  the  peti- 
tion should  so  state,  giving  amounts  paid,  and  amount 
remaining  in  the  possession  of  the  executor  or  admin- 
istrator applicable  to  such  payment,33  but  it  need  not 
aver  that  all  the  payments  made  by  the  executor  or 
administrator  were  valid.34  It  is  not  necessary  that 
the  petition  give  a  particular  enumeration  of  the  debts, 
designating  the  amount  owing  each  creditor.  A  state- 
so  Houck  v.  Meyer,  23  Or.  10,  17  Pac.  461;  Howe  v.  Kern,  63  Or. 
487,  125  Pac.  838,  63  Or.  500,  128  Pac.  818;  Shields  v.  McDowell,  82  N.  C. 
137;  Lynch  v.  Baxter,  4  Tex.  431;  Foley  v.  McDonald,  46  Miss.  238; 
Eoe  v.  Swezey,  10  Barb.  (N.  Y.)  247;  Guy  v.  Gericks,  85  111.  428; 
Stuart  v.  Allen,  16  Cal.  473. 

31  Eenner  v.  Ross,  111  Ind.  269,  12  N.  E.  508;  Meadows  v.  Meadows, 
73  Ala.  356;  Sharp  v.  Sharp,  76  Ala.  312. 

32  Pryor  v.  Downey,  50  Cal.  388. 

33  Blount  v.  Pritchard,  88  N.  C.  445. 

34  Conger  v.  Cook,  56  Iowa,  117,  8  N.  W.  782. 

(484) 


Chap.  25]  SALES  OF  LANDS.  §  315 

ment  of  their  aggregate  amount,  and  also  of  the  amount 
unpaid,  is  all  that  is  necessary.35 

The  petition  should  be  verified,  but  such  verification 
may  be  upon  information  and  belief.36 

Under  the  Oregon  practice,  in  addition  to  the  alle- 
gations required  in  such  petition  in  Nebraska,  it  must 
set  out  the  probable  value  of  the  different  portions  of 
the  real  estate,  the  amount  and  nature  of  the  liens 
thereon,  if  any,  the  residences,  so  far  as  known,  of  the 
heirs  or  devisees,  and  if  it  is  desired  to  sell  the  whole 
or  any  part  of  the  real  estate  before  the  sale  of  the 
personal  property,  the  petition  shall  set  out  the  rea- 
sons therefor.37  The  place  of  residence  of  each  heir 
must  be  given,  if  known,  and  not  his  address.38 

§  315.    Description  of  lands. 

The  statute  requires  the  petition  to  contain  a  de- 
scription of  all  the  real  estate  of  which  the  testator  or 
intestate  died  seised.  This  requirement  is  necessary 
to  give  the  judge  jurisdiction  of  the  matter,  and  an 
omission  to  make  these  averments  will  render  the  sale 
liable  to  be  set  aside.39  The  question  as  to  what  con- 
stitutes such  a  description  as  will  enable  the  court  to 
acquire  jurisdiction  to  grant  the  license  has  been  vari- 
ously determined  by  different  supreme  courts.  The 
rule  which  is  generally  applied  in  the  best  considered 

35  Collins  v.  Farnsworth,   8  Blackf.   (Ind.)   575;   Moffitt  v.  Moffitt, 
69  111.  641. 

36  Rowland  v.  Carroll,  81  111.  224; 

37  L.  O.  L.,  §  1253;  Howe  v.  Kern,  63  Or.  496,  128  Pac.  819. 

38  Smith  v.  Whiting,  55  Or.  398,  106  Pac.  790. 

39  Townsend  v.  Gordon,  19  Cal.  188;  Boland's  Estate,  55  Cal.  310. 

(485) 


§  315  PROBATE  AND  ADMINISTRATION.          [Chap.  25 

cases  is  that  the  county,  township  and  range,  and  the 
subdivision  of  the  section,  should  be  given,  or  the  de- 
scription, if  by  metes  and  bounds  or  lot  and  block,  be 
such  that  a  person  reading  it  would  know  the  location 
of  the  land.40  Where  the  petition  failed  to  give  the 
county,  but  the  land  was  otherwise  accurately  de- 
scribed in  the  proceedings,  the  sale  was  held  not 
affected  by  the  faulty  description  in  the  petition.41 
The  petition  should  always  be  such  as  to  enable  the 
court,  aided  by  its  judicial  knowledge  of  public  sur- 
veys, to  know  just  where  the  lands  of  decedent  are 
situated.42 

It  is  not  necessary  to  set  out  the  nature  and  character 
of  decedent's  title.43 

The  petition  should  set  out  the  condition  and  value 
of  each  separate  tract.  "Unimproved"  is  a  sufficient 
description  of  the  condition  of  a  vacant  lot  in  a  town 
or  city,  or  of  wild,  uncultivated  land.44  A  statement 
of  its  condition  without  giving  the  value  as  near  as  it 
can  be  done  is  defective  as  against  direct  attack  on 
appeal  from  the  order  of  sale.45 

40  Doe  d.  Hamilton  v.  Hardy,  52  Ala.  291;  Wright's  Heirs  v.  Ware, 
50   Ala.   549;    Smitha  v.   Flournoy's  Admr.,  47   Ala.   345;   Blackwell  v. 
Townshend,  -91  Ky.  609,  16  S.  W.  587. 

41  .Bryan  v.  Bauder,  23  Kan.  95;  Howbert  v.  Heyle,  57  Kan.  58,  27 
Pac.  116. 

42  Money  v.  Turnipseed,  50  Ala.  499. 

43  Tyndale  v.  Stanwood,  182  Mass.  534,  66  N.  E.  23. 

44  Richardson  v.  Butler,  82  Cal.  174,  23  Pac.  9. 

45  in  re  Cook,  137  Cal.  184,  69  Pac.  998.     It  is  held  by  some  courts 
that  when  the  petition  is  filed  by  an  executor,  it  should  show  affirm- 
atively that  the  will  did  not  confer  on  him   any  power  to   sell  real 
estate  for  any  purpose,  and  that  if  such  allegation  was  omitted,  con- 
firmation should  be  refused.     There  is  no  such  requirement   in  this 
state. 

(486) 


Chap.  25]  SALES  OF  LANDS.  §  315 

Form  No.  143. 

PETITION  OF  EXECUTOR  OE  ADMINISTRATOR  FOR  LICENSE 
TO  SELL  REAL  ESTATE. 

In  the  District  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Administrator,  for  License 
to  Sell  Real  Estate. 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  —     —  day  of  ,  19 — ,  letters  of  administration  upon  the 

estate  of  said  A.  B.,  deceased,  were  issued  to  him  out  of  and  under 
the  seal  of  the  county  court  of  said  county;  that  the  debts  allowed 

against   said  estate   amount  to  the  sum  of  dollars   ($ ), 

and  the  costs  of  administering  said  estate  will  amount  to  about  the 

sum  of  dollars   ($ ) ;  that  the  allowance  made  by  said 

county  court  to  E.  F.  for  the  support  of  herself  and  the  minor  children 

of  said  A.  B.  will  amount  to  the  sum  of dollars  ($ ),  and 

that  the  total  indebtedness   of  said  estate  will  amount  to  about  the 

sum   of  dollars   ($ ) ;   that  the   personal  estate  that   has 

come  into  the  hands  of  your  petitioner  amounts  to  the  sum  of  

dollars  ($ ),  and  that  all  the  personal  assets  of  said  estate  have 

been  reduced  by  him  to  possession;  that  he  has  paid  from  said  per- 
sonal assets  upon  the  debts  of  said  estate  the  sum  of  dollars 

($ ),   and    upon   allowances   for   support   of   widow,   E.   F.,   and 

expenses  of  administration,  the   sum  of  ($ ),  and  there 

still  remains  in  his  hands,  undisposed  of,  personal  assets  of  said  estate 

of  the  value  of dollars  ($ );  that  the  following  described 

real  estate  is  all  that  belongs  to  said  estate,  to  wit  [describe  each  tract 
or  lot  of  land,  giving  nature,  extent,  and  value  of  improvements  upon 
each  separate  tract  or  lot,  and  give  value  of  the  lands] ;  that,  for  the 
purpose  of  paying  such  debts,  charges,  and  expenses,  it  is  necessary  to 

sell   so   much  of   said  real   estate   as   will  bring  the   sum   of  

dollars  ($ ). 

The  names  and  residences  of  the  heirs  at  law  and  next  of  kin  of 
said  decedent,  and  of  all  persons  interested  in  said  estate,  are  as  fol- 
lows: [Give  names  and  residences,  and  age,  if  minors,  of  each  of 
them.] 

Your  petitioner  therefore  prays  that  a  license  may  be  granted  to 
him  to  sell  so  much  of  said  real  estate  as  may  be  necessary  to  pay  said 
debts  and  expenses,  and  the  expenses  of  this  proceeding,  and  for  such 
other  relief  as  may  be  just  and  equitable. 

(Signed)     C.  D., 
By  H.  C.  M.,  His  Attorney. 

(487) 


§  315  PEOBATE   AND  ADMINISTRATION.          [Chap.  25 

Form  No.  143a — Oregon. 
PETITION  FOB  LICENSE  TO  SELL  EEAL  ESTATE. 

[Title  of  Cause  and  Court.] 

C.  D.,  executor  of  the  estate  of  A.  B.,  deceased,  respectfully  repre- 
sents unto  said  court  that  he  has  sold  all  the  personal  property  belong- 
ing to  said  estate  which  is  applicable  for  the  payment  of  debts  for 

the  sum  of  $ ,  and  that  said  amount  has  been  applied  by  him  in 

the  payment  of  the  debts  of  said  estate  and  the  costs  and  charges  of 
administration,  and  that  the  following  charges,  expenses  and  claims 

against   said   estate   are   still  unsatisfied,  ,   and   that  no   other 

debts  have  been  presented  to  your  petitioner  for  allowance,  and  that 
there  are  no  other  demands  against  said  estate  so  far  as  your  petitioner 
has  been  able  to  ascertain. 

That  said  A.  B.  died  seised  of  the  following  described  real  estate, 

,  that  said  first  described  tract  of  land  consists  of  an  improved 

farm  of  acres,  all  of  which  is  capable  of  cultivation  with  a 

dwelling-house,  barns  and  outbuildings  thereon,  all  in  a  good  state  of 
repair,  and  is  of  the  probable  value  of  $ ;  that  said  last  de- 
scribed tract  of  land  consists  of  acres  unimproved  and  un- 

fenced,  with  some  scattering  timber  thereon  of  small  value,  and  that 
the. probable  value  of  said  tract  is  the  sum  of  $ . 

That  the  names,  ages  and  residences  of  the  devisees  of  said  A.  B. 

are  as  follows:  L.  B.,  age  years,  residence ;  M.  B.,  age 

years,  residence,  ;  that  it  is  necessary  to  sell  the  whole 

or  a  part  of  said  above-described  real  estate  for  the  purpose  of  paying 
the  remainder  of  the  debts  of  said  estate  and  the  charges  and  expenses 
of  administration. 

Your  petitioner  therefore  prays  that  a  citation  issue  to  the  devisees 

of  said  deceased  to  appear  at  the  term  of  said  court  to  show 

cause,  if  any  there  be,  why  an  order  of  sale  should  not  be  made  author- 
izing and  empowering  your  said  petitioner  to  sell  said  lands  or  so  much 
thereof  as  may  be  necessary  for  the  payment  of  said  residue  of  debts, 
charges  and  expenses  of  administration. 

Dated  this day  of  -     — ,  19—. 

C.  D., 
Executor  of  the  Estate  of  A.  B.,  Deceased. 

By  W.  M.  L.,  His  Attorney. 

[Add  verification.] 

(488) 


Chap.  25]  SALES  OF  LANDS.  §  316 

§  316.    Order  to  show  cause. 

"If  it  appears  from  the  petition  that  there  is  not 
sufficient  personal  estate  in  the  hands  of  the  executor 
or  administrator  to  pay  the  debts  outstanding  against 
the  deceased  and  the  expenses  of  administration,  and 
that  it  is  necessary  to  sell  the  whole  or  some  portion 
of  such  real  estate  for  the  payment  of  such  debts,  the 
judge  of  the  district  court  shall  thereupon  make  an 
order  directing  all  persons  interested  in  the  estate  to 
appear  before  him  at  a  time  and  place  to  be  therein 
specified,  not  less  than  six  weeks  nor  more  than  ten 
weeks  from  the  time  of  making  such  order,  to  show 
cause  why  a  license  should  not  be  granted  to  the  execu- 
tor or  administrator  applying  therefor  to  sell  so  much 
of  the  real  estate  of  the  deceased  as  shall  be  necessary 
to  pay  such  debts. ' ' 46 

The  order  may  be  made  by  the  judge  at  any  time, 
either  in  open  court  or  at  chambers,47  anywhere  within 
the  district. 

Under  the  Oregon  practice,  a  citation  issues  to  the 
devisees  and  heirs  therein  mentioned,  and  to  all  others 
unknown,  if  any  such  there  be,  to  appear  at  a  term  of 
court  not  less  than  ten  days  after  service  of  the  cita- 
tion to  show  cause,  if  any  there  be,  why  an  order  of 
sale  should  not  issue.48  When  service  is  by  publica- 
tion, the  return  day  must  be  after  such  publication  is 
completed.49 

46  Rev.  Stats.,  c.  17,  §  184,  [1448]. 

47  Rev.  Stats.,  c.  17,  §  187,  [1451];  Stack  v.  Royce,  34  Neb.  383,  52 
X.  W.  675. 

48  Howe  v.  Kerrn,  63  Or.  398,  125  Pac.  838,  63  Or.  500,  128  Pac.  818; 
L.  O.  L.,  §  1254. 

49  Smith  v.  Whiting,  55  Or.  393,  106  Pac.  791. 

(489) 


§  316  PROBATE  AND  ADMINISTRATION.          [Chap.  25 

The  personal  representative  and  other  parties  inter- 
ested in  the  estate  cannot  waive  the  issue  of  an  order 
to  show  cause.  It  is  absolutely  necessary  to  confer 
jurisdiction  upon  the  court,  and  a  sale  made  without 
conveys  no  title,  and  is  void,50  and  its  validity  may 
therefore  be  attacked  in  a  collateral  proceeding. 

The  order  must  substantially  comply  with  the  stat- 
ute. It  should  be  addressed  to  all  persons  interested 
in  the  estate  but  need  not  necessarily  give  the  names 
of  all  the  heirs,  devisees,  legatees  or  persons  interested 
in  the  lands.51 

Its  contents  should  be  sufficient  to  apprise  any  party 
reading  it  of  the  object  and  prayer  of  the  petition  and 
the  time  and  place  where  it  will  be  heard.52  If  it  fails 
to  give  either  the  time  and  place  for  hearing,  the  heirs 
are  not  bound  by  it,  and  the  court  does  not  acquire 
jurisdiction  thereby  to  grant  a  license.53 

It  has  been  held  that  the  order  should  also  contain 
a  description  of  the  land  sought  to  be  sold,  and  that 
if  it  is  incorrectly  described,  the  court  is  without  juris- 
diction, and  a  sale  under  a  license  so  issued  is  void.54 
Our  statute  does  not  state  just  what  the  order  shall 
contain,  and  it  would  seem  that  the  general  statement 

50  Teverbaugh  v.  Hawkins,  82  Mo.  180;  French  v.  Hoyt,  6  N.  H. 
370;  Gerrard  Y.  Johnson,  12  Ind.  637;  Hawkins  v.  Hawkins'  Admr.,  28 
Ind.  71;  Gibbs  v.  Shaw,  17  Wis.  204. 

51  Stack  v.  Boyce,  34  Neb.  833,  52  N.  W.  675;  Hobson  v.  Ewan,  62 
111.  146;  Bostwick  v.  Skinner,  80  111.  158. 

52  Gibson  v.  Boll,  27  111.  88;  Jackson  d.  Grignon  v.  Astor,  1  Finn. 
(Wis.)  137. 

53  Finch  v.  Sink,  46  111.  169;  Gibson  v.  Boll,  27  111.  88;  Johnson  v. 
Clark,  18  Kan.  157. 

54  Lyon  v.  Vanatta,  35  Iowa,  528. 

(490) 


Chap.  25]  SALES  OF  LANDS.  §  317 

of  the  object  and  prayer  ought  to  be  enough  to  apprise 
interested  parties  of  what  land  it  is  desired  to  sell.55 

Form  No.  144. 

ORDER    TO    SHOW    CAUSE    WHY    LICENSE    SHOULD    NOT    BE 
GRANTED  TO   SELL  REALTY. 

In  the  District  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Administrator,  for  License 
to  Sell  Real  Estate. 

Non-,  on  this day  of ,  19 — ,  C.  D.,  administrator  of  the 

estate  of  A.  B.,  deceased,  having  presented  his  petition  under  oath 
praying  for  license  to  sell  the  following  described  real  estate  of  the 
said  A.  B.  [describe  real  estate  the  same  as  in  the  petition],  or  a  suffi- 
cient amount  thereof  to  bring  the  sum  of  dollars  ($ ), 

for  the  payment  of  debts  allowed  against  said  estate,  and  allowances 
and  costs  of  administration,  for  the  reason  that  there  is  not  a  suffi- 
cient amount  of  personal  property  in  the  possession  of  said  C.  D., 
administrator,  belonging  to  said  estate,  to  pay  said  debts,  allowances, 
and  costs. 

It  is  therefore  ordered  that  all  persons  interested  in  said  estate  ap- 
pear before   me   at   chambers  in  the   city  of  ,  in   said   county, 

on  the  day  of  ,  19 — ,  at  the  hour  of  10  o'clock  A.  M.,  to 

show  cause,  if  any  there  be,  why  a  license  should  not  be  granted  to 
said  C.  D.,  administrator,  to  sell  so  much  of  the  above-described'  real 
estate  of  said  decedent  as  shall  be  necessary  to  pay  gaid  debts  and 
expenses. 

It  is  further  ordered  that  a  copy  of  this  order  be  served  upon  all 
persons  interested  in  said  estate  by  causing  the  same  to  be  published 

for  four   successive   weeks  in  the  ,  a  newspaper  printed  and 

published  in  said  county  of . 

(Signed)     C.  H., 
Judge  of  the  District  Court. 

§  317.    Service  of  order  to  show  cause. 

If  all  persons  interested  in  said  estate  signify  in 
writing  their  assent  to  the  sale,  the  service  of  notice 

55  in  re  Roach,  139  Cal.  17,  72  Pac.  393. 

(401) 


§  317  PROBATE  AND  ADMINISTRATION.          [Chap.  25 

may  be  dispensed  with.56  Assenting  to  the  sale  does 
not  do  away  with  the  order  to  show  cause,  but  with 
service  of  it.57  Service,  therefore,  can  only  be  dis- 
pensed with  when  all  the  heirs  or  devisees  are  of  full 
age  and  competent.58  There  is  authority  to  the  effect 
that  a  guardian  may  sign  a  consent  to  sale  in  behalf 
of  his  ward.59 

If  such  assent  is  not  filed,  service  of  the  order  to 
show  cause  is  had  by  personal  service  on  all  persons 
interested,  at  least  ten  days  before  the  date  set  for 
hearing,  or  by  publication  for  four  successive  weeks  in 
such  newspaper  as  the  court  shall  order.60  The  method 
of  service  is  optional  with  the  district  judge,  and  it 
must  be  strictly  complied  with.  He  may  order  service 
by  publication,  though  all  interested  parties  are  resi- 
dents of  the  county  in  which  the  application  is  filed.61 
When  service  is  had  by  publication,  the  order  must 
be  published  for  four  successive  weeks  in  the  news- 
paper designated  and  none  other.  Substituting  an- 
other paper,  or  publication  for  a  shorter  time,  is  good 
cause  for  refusing  to  confirm  the  sale.62 

Proof  of  publication  must  be  made  in  the  usual  way 
by  the  affidavit  of  the  printer,  foreman  or  principal 
clerk,  or  other  person  knowing  the  same,  and  such 
affidavit  is  deemed  conclusive  on  collateral  attack.63 

56  Rev.  Stats.,  c.  17,  §  185,  [1449]. 

57  Section  316,  supra. 

58  Winston   v.   McLendon,  -43   Miss.   254;    Greenman   v.   Harvey,   53 
HI.  486;  Ingersol  v.  Mangam,  84  N.  Y.  622. 

59  Helms  v.  Love,  41  Ind.  210;  Smock  v.  Reichwine,  117  Ind.  194, 
19  N.  E.  776. 

60  Rev.  Stats.,  c.  17,  §  185,  [1449]. 

61  Fleming  v.  Bale,  23  Kan.  88;  Fudge  v.  Fudge,  23  Kan.  416. 

62  Townsend  v.  Tallant,  33  Cal.  45;  Valle  v.  Fleming,  19  Mo.  454. 

63  Finch  v.  Sink,  48  111.  169. 

(492) 


Chap.  25]  SALES  OF  LANDS.  §  317 

Any  of  them  may  also  prevent  the  sale  by  giving 
a  bond  to  the  judge  of  the  district  court  with  such 
sureties  as  he  may  direct  and  approve,  with  condition 
to  pay  all  the  debts  and  expenses  of  administration  so 
far  as  the  goods,  chattels,  rights,  credits  and  effects 
of  the  deceased  shall  be  insufficient  therefor,  within 
such  time  as  the  judge  may  direct.  The  bond  is  for 
the  security  and  may  be  prosecuted  for  the  benefit  of 
the  creditors,  as  well  as  the  executor  or  administra- 
tor.64 

Application  for  permission  to  give  the  bond  should 
be  by  motion  to  the  district  judge  at  chambers,  and 
may  be  made  at  any  time  before  license  is  issued.65 

Form  No.  145. 

ORDEK  OF  JUDGE  OF  DISTEICT  COURT  FIXING  AMOUNT  OF 
BOND  ON  .APPLICATION  TO  PREVENT  SALE, 

In  the  District  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Administrator,  for  License 
to  Sell  Real  Estate. 

Now,  on  this  day  of  ,  19 — ,  on  motion  of  H.  C.  M., 

attorney  for  E.  F.,  heir  of  said  A.  B.,  for  leave  to  file  a  bond  to 
stay  the  sale  of  the  real  estate  described  in  the  petition  of  said  admin- 
istrator, it  is  ordered  that  said  proposed  sale  be  not  made,  provided 
said  E.  F.  shall  give  a  bond  in  the  sum  of ,  with  good  and  suffi- 
cient sureties  to  be  approved  by  me,  conditioned  to  pay  all  the  debts 
and  expenses  of  administration  of  said  estate,  so  far  as  the  goods, 
chattels,  rights,  credits,  and  effects  of  the  deceased  shall  be  insufficient 

therefor,  within  months  from  this  date. 

(Signed)     W.  M., 
District  Judge. 

64  Rev.  Stats.,  c.  17,  §§  191,  192,  [1455],  [145G].     It  is  doubtful  if 
such  bond  entirely  releases  the  quasi  lien  of  creditors.     If  the  doctrine 
laid  down  in  Thompson  v.  Pope,  77  Neb.  338,  109  N.  W.  498,  applies, 
the  executor  or  administrator  would  still  have  recourse  on  the  land 
if  unable  to  collect  from  the  bondsmen. 

65  See  Davis  v.  Kendall,  161  Ind.  412,  68  N.  E.  894. 

(493) 


§  317  PROBATE  AND   ADMINISTRATION.          [Chap.  25 

Form  No.  146. 
BOND  TO  PREVENT  SALE  OF  EEAL  ESTATE. 

Know  all  men  by  these  presents,  that  we,  E.  F.,  of  the  county  of 

and  state  of  Nebraska,  as  principal,  and  G.  H.  and  L.  M.,  of 

said   county,   as  sureties,  are   held   and   firmly  bound  unto   the   judge 

of  the  district  court  of  said county,  Nebraska,  in  the  penal  sum 

of  dollars,  for  which  payment  well  and  truly  to  be  made  we 

do  hereby  jointly  and  severally  bind  ourselves,  our  heirs,  executors, 
administrators,  and  assigns. 

Dated  this day  of ,  19 — . 

Whereas,  C.  D.,  administrator  of  the  estate  of  A.  B.,  deceased,  has 
presented  to  the  Honorable  W.  M.,  judge  of  the  district  court  of  said 
county,  his  petition  to  sell  the  real  estate  of  said  A.  B.,  deceased,  for 
the  purpose  of  paying  the  debts  of  the  deceased  and  the  expenses  of 
administration: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
above-bounden  E.  F.  shall  pay  all  the  debts  of  said  deceased  and  the 
expenses  of  administration,  so  far  as  the  goods  and  chattels,  rights 
and  credits,  of  the  deceased  shall  be  insufficient  therefor,  within 

months  from  this  date,  then  this  obligation  shall  be  null  and 

void;  otherwise  to  remain  in  full  force  and  effect. 

(Signed)     E.   F. 
G.  H. 
L.  M. 
The  foregoing  bond  approved  by  me  both  as  to  form  and  sufficiency 

of  surety  this day  of ,  19 — . 

(Signed)     W.  M., 
Judge  District  Court, County,  Nebraska. 

In  Oregon  personal  service  of  the  citation  must  be 
had  on  heirs  or  devisees,  known  and  residents  of  the 
state,  in  the  same  manner  as  a  summons.  Service  on 
nonresidents  and  unknown  parties  is  had  by  publica- 
tion in  a  newspaper  selected  by  the  executor  or  admin- 
istrator for  not  less  than  four  weeks,  or  such  further 
time  as  the  court  or  judge  may  prescribe.  When  ser- 
vice is  had  by  publication,  the  citation  must  contain 
a  brief  description  of  the  property  sought  to  be  sold.68 

60  L.  0.  L.,  §  1255. 

(494) 


Chap.  25]  SALES  OF  LANDS.  §§  318,  319 

Service  of  the  order  in  the  manner  above  provided  is 
jurisdictional.67 

§  318.    Payment  of  debts  to  prevent  sale. 

The  heirs  or  devisees  may  at  any  time  before  the 
sale  is  completed  relieve  the  lands  of  the  lien  by  pay- 
ing the  debts,68  and  a  bona  fide  purchaser  from  an  heir 
or  devisee  would  have  the  same  right.69  The  party 
desiring  to  thus  release  the  land  must  make  an  abso- 
lute tender  of  the  amount  due;  he  is  not  entitled  to 
an  assignment  of  the  claim  or  claims  unpaid.7* 

§  319.    Hearing  on  the  application. 

At  the  time  and  place  fixed  for  the  hearing,  or  at 
the  time  to  which  the  same  may  have  been  adjourned, 
upon  proof  of  the  service  of  the  order  to  show  cause, 
or  the  waiver  thereof,  the  court  may  hear  the  testi- 
mony of  all  parties  interested  in  the  application,  either 
in  favor  of  or  in  opposition  to  the  same.71  The  ex- 
ecutor or  administrator  may  be  produced  and  exam- 
ined on  oath,  and  process  to  compel  their  attendance 
and  testimony  may  be  issued  with  like  effect  as  in 
other  cases.72 

There  are  no  fixed  rules  for  pleadings,  and  the 
granting  of  continuances  is  within  the  discretion  of 
the  court.  Answers  or  objections  may  be  filed  by  the 

67  Smith  v.  Whiting,  55  Or.  393,  106  Pac.  791;  Browne  v.  Coleman, 
€2  Or.  461,  125  Pac.  278. 

68  Davis  v.  Kendall,  161  Ind.  412,  68  N.  E.  894;  Sagers  v.  Mead,  171 
Pa.  "49,  33  Atl.  355. 

69  Fletcher  v.  Livingston,  123  Mass.  388,  26  N.  E.  1001. 

70  Weil  v.  Clark's  Estate,  9  Or.  387. 

71  Rev.  Stats.,  c.  17,  §  186,  [1450]. 

72  Rev.  Stats.,  c.  17,  §  188,   [1452]. 

(495) 


§  319  PROBATE  AND   ADMINISTRATION.         [Chap.  25 

heirs  or  devisees  and  also  by  persons  claiming  as  gran- 
tees under  them.73 

The  appointment  of  the  administrator  cannot  be 
attacked  unless  the  record  clearly  shows  that  he  was 
without  jurisdiction  to  act  as  such  officer.74  If  the 
proceedings  for  his  appointment  are  regular  on  their 
face  and  the  irregularities  alleged  are  not  jurisdic- 
tional  defects,  they  are  not  a  defense.75  Defects  or 
irregularities  in  the  petition  for  sale,  order  and  service 
may  be  raised  by  objection. 

The  petition  must  set  out  all  the  allegations  required 
by  the  statutes.  If  it  omits  material  facts  such  as  the 
amount  of  personal  property  on  hand  or  a  description 
of  the  property,  the  objections  should  be  sustained.™ 
The  court  has  the  right  to  permit  amendments  of  the 
petition  by  making  it  more  definite,  but  cannot  permit 
it  to  be  amended  to  supply  omissions  which  are  juris- 
dictional.77 

The  duty  of  the  court  in  a  proceeding  for  the  sale 
of  land  for  payment  of  debts  is  to  conserve  the  estate, 
and  the  question  to  be  determined  is,  are  the  personal 
assets  of  the  estate  in  the  hands  of  the  executor  or 
administrator,  together  with  those  which  it  is  his  duty 
to  reduce  to  possession,  sufficient  to  pay  the  debts  of 
the  estate  and  the  costs  and  expenses  of  administra- 
tion.78 

73  In  re  Campbell's  Will,  170  N.  Y.  84,  62  N.  E.  1070;  Newell  v.. 
Johns,  128  Ala.  584,  29  South.  609. 

74  McAnnulty  v.  McClay,  16  Neb.  418,  20  N.  W.  266. 

75  Waldow  v.  Beemer,  45  Neb.  628,  63  N.  W.  918. 

76  Wiight  v.  Edwards,  10  Or.  298. 

77  Brown  v.  Powell,  45  Ala.  149. 

78  Sasse  v.  Sasse,  93  Neb.  341,  141  N.  W.  1026;  In  re  Parker's  Estate^ 
72  Neb.   601,   101  N.  W.  233;   Waldow  v.  Beemer,  45   Neb.   628,   63- 
N.  W.  918. 

(496) 


Chap.  25]  SALES  OF  LANDS. 

§  320.    Hearing — Insufficiency  of  personal  property. 

If  there  are  collectible  assets  belonging  to  the  estate 
sufficient  to  pay  all  the  debts,  the  court  is  without 
authority  to  grant  the  license.79  The  term  "collectible 
assets"  includes  only  such  as  are  subject  to  the  pos- 
session and  control  of  the  administrator  or  executor 
within  this  state.80 

In  Oregon,  when  the  license  is  applied  for  before 
the  personal  estate  is  exhausted,  it  must  be  made  to 
appear  to  the  court  that  it  is  for  the  best  interest  of 
the  estate  or  of  the  devisees,  legatees  or  heirs  thereof 
that  it  should  be  sold  before  the  personal  property.81 

It  should  appear  that  all  reasonable  efforts  have 
been  made  to  relieve  the  real  estate,  though  old  debts 
due  the  estate  and  claims  in  litigation,  the  outcome 
of  which  is  doubtful,  need  not  be  considered.82  Per- 
sonal assets  which  have  passed  into  the  hands  of  heirs 
or  legatees,  specific  bequests  excepted,83  should  be  re- 
covered and  applied  on  the  debts  and  costs  and 
charges,84  and  if  a  will  creates  a  fund  for  the  purpose 
of  taking  care  of  the  debts,  it  must  be  exhausted.85 

When  the  application  is  made  by  an  administrator 
de  bonis  non,  it  is  a  good  defense  that  there  is  still  a 
balance  due  him  from  his  predecessor,  and  unless  he 
can  show  that  the  same  cannot  be  collected  from  such 
predecessor  or  bondsmen,  or  that  even  if  it  were  col- 

7»  Sasse  v.  Sasse,  93  Neb.  641,  141  N.  W.  1026. 

80  Section  260,  supra. 

81  L.  O.  L.,  §  1252. 

82  Schroeder's  Estate,  Myr.  Prob.  (Cal.)  7;  Bridge  v.  Swain,  3  Eedf. 
Sur.  (X.  Y.)   487. 

83  In  re  Noon's  Estate,  49  Or.  293,  88  Pac.  673,  90  Pac.  673. 

84  Hollrran  v.  Bennet,  41  Miss.  322. 

80  Sasse  v.  Sasse,  93  Neb.  041,  141  N.  W.  1026. 
32-Pro.Ad. 


§  321  PROBATE  AND  ADMINISTRATION.          [Chap.  25 

lected  there  would  still  be  a  deficiency,  it  should  be 
denied.86  If  the  deficiency  is  caused  by  the  acts  of 
the  executor  or  administrator  equivalent  to  a  devas- 
tavit,  the  courts  are  divided  on  the  question  whether 
the  lands  should  be  mac^  available  for  the  debts.  The 
New  York  rule  is  that  it  does  not  relieve  the  estate 
from  liability,87  while  other  courts  hold  it  a  good  de- 
fense.88 It  is  not  necessary  that  the  exact  amount  of 
the  deficiency  be  determined.  The  application  may  be 
made  in  the  early  part  of  the  administration.  The 
right  to  the  sale  depends  on  an  insufficiency  and  does 
not  require  the  striking  of  a  balance.89  The  burden 
of  proof  is  on  the  applicant  to  establish  the  allegations 
of  his  petition.90 

§  321.    Hearing — Debts  and  expenses  of  administra- 
tion. 

When  the  petition  is  filed  after  the  allowance  of 
claims  by  the  county  court,  the  district  judge  is  bound 
by  the  order  allowing  them,  and  no  defense  to  them  can 
be  set  up.91  It  has  been  held,  however,  that  where  one 
claim  was  the  basis  of  the  application  and  such  a  state 
of  facts  existed  as  would  justify  a  court  of  equity  in  set- 
ting aside  a  judgment,  all  the  proper  parties  being  be- 
fore the  court,  the  license  was  properly  refused.92 

86  Scherer  v.  Ingerman,  110  Ind.  429,  11  N.  E.  8. 

87  In  re  Bingham,  127  N.  Y.  206,  27  N.  E.  1056. 

88  Foley  v.  McDonald,  46  Miss.  238. 

89  Abila  v.  Burnett,  38  Cal.  658;  Succession  of  Tabor,  33  La.  Ann. 
343;  Shoemate  v.  Lockridge,  53  111.  503. 

90  Garrett  v.  Bruner,  59  Ala.  513;  Lawrence's  Appeal  from  Probate, 
49  Conn.  411. 

91  Section  308,  supra;  Smith  v.  Smith's  Admr.,  27  N.  J.  Eq.  445. 

92  Hillebrant  v.  Burton's  Heirs,  17  Tex.  140. 

(498) 


Chap.  25]  SALES  OF  LANDS.  §  322 

The  application  may  be  made  before  claims  are 
allowed.93  In  that  case  there  would  be  two  lines  of 
defense  open  to  a  party  alleging  that  the  indebtedness 
was  less  than  set  out  in  the  petition.  He  can  either 
file  a  plea  in  the  nature  of  a  plea  in  abatement,  setting 
up  that  alleged  demands  are  being  contested  and  that 
it  is  impossible  to  determine  at  present  whether  or  not 
there  is  a  deficiency  of  assets,  or  he  may  deny  that 
such  indebtedness  exists.  Of  course  the  court  or 
judge  has  no  authority  to  hear  and  determine  claims 
against  the  estate  in  the  proceeding,  but  there  would 
appear  to  be  no  good  reason  why  he  could  not  deter- 
mine at  least  whether  they  were  prima  facie  debts  con- 
tracted by  the  deceased  in  his  lifetime  and  not  barred 
by  the  statute  of  limitations.  As  a  matter  of  fact, 
more  licenses  for  the  sale  of  real  estate  are  granted 
before  all  claims  are  allowed  than  after. 

Costs  and  expenses  of  administration  are  both  mat- 
ters that  eventually  must  be  decided  by  the  county 
court,  and  can  only  be  estimated  at  the  hearing. 

§  322.    Hearing — Lands  subject  to  sale. 

Any  land  or  interest  therein  the  title  to  which  was 
vested  in  decedent  at  the  time  of  his  death,  except  the 
homestead  exemption,94  may  be  sold  for  the  benefit 
of  his  creditors,  though  such  lands  may  have  been 
sold  by  the  heirs  or  devisees,  or  their  title  have  passed 
to  others  by  descent  or  devise.95  A  reversion  or  re- 

93  Cahill  v.  Bassett,  66  Mich.  407,  33  N.  W.  772. 

94  Bixby  v.  Jewell,  72  Neb.  755,  101  N.  W.  1026;  Brandon  v.  Jansen, 
74  Neb.  569,  104  N.  W.  1054;  Holmes  v.  Mason,  80  Neb.  448,  114  N.  W. 
606. 

95  Rev.    Stats.,    c.    17,  §  194,    [1458];    Drinkwater    v.    Drinkwater,    4 
Mass.  354;  Willard  v.  Nason,  5  Mass.  240. 

(499) 


§  322  PROBATE   AND  ADMINISTRATION.          [Chap.  25 

mainder,96  an  interest  as  vendee  in  an  executory  con- 
tract for  the  sale  of  lands,97  or  any  equitable  interest 
or  estate  of  inheritance  is  subject  to  sale  under  license, 
excepting  only  a  leasehold  interest,  which  is  person- 
alty and  can  be  sold  as  such.98 

Land  may  be  sold  though  the  title  is  in  litigation. 
An  application  under  such  circumstances  is  inadvis- 
able, and  the  conditions  may  be  such  as  to  require  the 
court  to  refuse  to  grant  the  license." 

Sales  for  payment  of  debts  when  the  widow  was  en- 
titled to  dower  were  always  subject  to  such  estate  un- 
less she  had  previously  been  endowed  with  other 
lands.100  As  she  now  takes  an  estate  in  fee  by  virtue  of 
the  marital  relation,  her  rights  are  no  greater  than 
those  of  the  heirs.101 

There  is  authority  to  the  effect  that  where  the  pro- 
ceedings for  the  sale  are  before  a  court  of  general  juris- 
diction, and  all  the  parties  are  before  the  court,  the 
title  to  the  lands  may  be  determined  in  the  action  or 
proceeding,  and  that  a  decree  refusing  the  license  and 
quieting  title  in  the  heirs  was  conclusive  and  not  sub- 
ject to  collateral  attack  except  in  a  direct  proceeding 
for  that  purpose.102 

96  Valle  v.  Bryan,  19  Mo.  423;  Lundsford  v.  Jarrett,  2  Lea  (Term.), 
579. 

97  Hovarka  v.  Havlik,  68  Neb.  14,  93  N.  W.  990;  Eev.  Stats.,  c.  17, 
§  208,  [1472];  Cutler  v.  Meeker,  71  Neb.  732,  99  N.  W.  514;  L.  0.  L., 
§  1266. 

98  Mulloy  v.  Kyle,  26  Neb.  313,  41  N.  W.  1117. 

99  Martin  v.  Bond's  Estate,  64  Neb.  868,  90  N.  W.  910. 

100  Motley  v.  Motley,  53  Neb.  375,  73  N.  W.  738. 

101  Rev.  Stats.,  c.  17,  §  1,  [1265]. 

102  Parker  v.  Wright,  62  Ind.  398;  Gavin  v.  Graydon,  41  Ind.  559. 

(500) 


Chap.  25]  SALES  OF  LANDS.  §  323 

Granting  or  refusing  a  license  is  largely  a  matter 
of  discretion,  and  when  no  jurisdictional  questions  are 
involved,  the  judgment  of  the  court  will  not  be  dis- 
turbed unless  an  abuse  of  discretion  injuriously  affect- 
ing the  parties  interested  clearly  appears.103 

§  323.     Order  of  sale  or  license. 

If  the  district  judge  shall  be  satisfied  after  a  full 
hearing  on  the  petition  and  an  examination  of  the 
proofs  and  allegations  of  the  parties  interested  that  a 
sale  of  the  whole  or  some  portion  of  the  realty  is  neces- 
sary for  the  payment  of  the  debts  and  expenses  of 
administration,  or  if  such  sale  shall  be  assented  to  by 
all  persons  interested,  he  shall  thereupon  make  an 
order  of  sale  authorizing  the  executor  or  administrator 
to  sell  the  whole  or  so  much  of  the  real  estate  of  the 
deceased  as  is  necessary  for  the  payment  of  the  valid 
claims  against  the  estate  and  the  charges  of  adminis- 
tration, which  must  specify  the  lands  to  be  sold  and 
direct  the  order  in  which  the  sale  shall  be  made.104 

Lands  of  a  testator  which  for  any  reason  pass  to  his 
heirs  must  be  sold  in  preference  to  that  which  is  de- 
vised, and  in  no  case  should  land  which  has  been  sold 
by  an  heir  or  devisee  be  ordered  sold  until  that  in 
their  possession  or  in  the  possession  of  the  personal 
representative  is  disposed  of.105 

Under  the  Oregon  practice,  where  the  debts  for 
which  a  sale  is  sought  are  secured  by  mortgage,  the 
mortgaged  property  must  first  be  sold.100 

103  In  re  Parker's  Estate,  72  Neb.  601,  101  N.  W.  233. 

104  Eev.   Stats.,  c.  17,  §§  193,  194,   [1457],   [1458];  L.  O.  L.,  §  1256; 
Smith  v.  Whiting,  55  Or.  399,  107  Pae.  790. 

105  Eev.  Stats.,  c.  17,  §  194,  [1458]. 

106  Howe  v.  Kern,  63  Or.  594,  125  Pac.  834. 

(501) 


§  323  PBOBATE  AND  ADMINISTRATION".         [Chap.  25 

Lands  specifically  devised  or  devised  not  chargeable 
with  debts  should  not  be  sold  until  other  available 
property  is  disposed  of.  There  is  no  preference  be- 
tween specific  devises,  each  being  equally  liable  after 
the  other  property  is  exhausted.107 

If  a  part  of  the  lands,  sufficient  to  pay  the  debts,  can- 
not be  divided  without  injury  or  loss  to  the  estate,  the 
court  may  order  the  entire  tract  or  lot  sold.108  The 
order  should  specify  the  terms  of  sale,  whether  for 
cash  or  on  credit.  If  on  time,  the  terms  must,  in 
Nebraska,  be  not  less  than  one-fourth  cash  and  the 
balance,  due  in  not  exceeding  three  years,  secured  by 
mortgage  on  the  premises.109 

The  description  of  the  lands  in  the  order  of  sale 
should  be  sufficiently  definite  to  fix  the  location  and 
quantity  of  each  tract.110  The  license  may  authorize 
him  to  sell  enough  lands  from  certain  described  tracts 
to  bring  the  necessary  amount.111  If  the  license  au- 
thorizes the  sale  of  only  a  part  of  the  lands,  it  will 
be  presumed  that  the  court  found  that  the  sale  of  more 
was  not  necessary,  and  if  they  do  not  sell  for  enough 
to  pay  the  debts  and  costs  and  charges  of  sale,  a  new 
proceeding  must  be  instituted  for  the  sale  of  other 
lands.  The  court  cannot  issue  a  supplementary  license 
on  the  old  petition.112  Before  the  sale  is  made  where 
the  proceedings  are  before  the  judge  sitting  in  cham- 

107  Howe  v.  Kern,  63  Or.  594,  125  Pac.  834,  128  Pac.  818. 

108  Rev.  Stats.,  c.  17,  §  193,   [1457];  L.  O.  L.,  §  1256. 

109  Rev.  Stats.,  e.  17,  §  200,  [1464];  L.  O.  L.,  §§  1256,  1257. 

110  Bloom  v.  Burdick,  1  Hill  (N.  Y.),  130;  Graham  v.  Hawkins,  38 
Tex.  628. 

in  Richardson  v.  Butler,  82  Cal.  174,  23  Pac.  9. 

112  Ackley  v.  Digert,  33  Barb.  (N.  Y.)  176;  Cunningham  v.  Ander- 
son, 107  Mo.  371,  15  S.  W.  972. 

(502) 


Chap.  25]  SALES  OF  LANDS.  §  324 

bers,  the  petition  and  the  license  must  be  filed  in,  the 
office  of  the  clerk  of  the  district  court  of  the  county 
from  which  letters  were  issued  to  the  personal  repre- 
sentative. The  authority  to  sell  under  license  issued 
at  chambers  is  established  by  the  grant  of  the  license, 
and  the  filing  of  a  copy  of  the  same  together  with  the 
petition  with  the  clerk  of  the  court.  It  is  immaterial 
whether  the  lands  are  situated  in  the  county  where 
administration  was  granted  or  not.113  The  order  of 
the  county  court  issuing  or  refusing  to  issue  a  license 
is  a  final  one  and  subject  to  review  by  the  supreme 
court.114 

§  324.    Additional  bond. 

The  district  judge  .has  power  to  require  a  further 
bond  of  the  executor  or  administrator  in  all  orders  for 
sales  of  real  estate,  if  he  deems  it  necessary,  and  where 
more  land  than  is  necessary  to  pay  the  debts  is  ordered 
sold,  a  bond  must  be  given  to  the  district  judge  by  the 
representative  conditioned  to  account  for  all  the  pro- 
ceeds that  remain  after  the  payment  of  the  debts  and 
charges,  and  to  dispose  of  the  same  according  to  law.115 
It  may  be  approved  by  the  judge  or  clerk  of  the  dis- 
trict court.116 

Under  the  Oregon  practice,  an  additional  bond  is 
required  unless  the  penalty  of  the  administration  bond 
is  at  least  double  the  amount  of  the  personal  property 
in  the  possession  of  the  representative,  or  that  may 

113  Stack  v.  Royce,  34  Neb.  833,  52  N.  Y.  675;  Veeder  v.  McKinley- 
Lanning  L.  &  T.  Co.,  61  Neb.  892,  86  N.  W.  982. 

1"  Possenecker  v.  Entermann,  64  Neb.  409,  89  N.  W.  1033;  In  re 
Smith's  Estate,  43  Or.  595,  73  Pac.  336,  75  Pac.  133. 

"5  R«v.  Stats.,  c.  17,  §§189,  193,  [1453],   [1457]. 

u«  Melcher  v.  Schluter,  5  Neb.  Unof.  445,  98  N.  W.  1082. 

(503) 


§  324  PEOBATE  AND  ADMINISTRATION.          [Chap.  25 

come  into  his  possession,  plus  double  the  amount  of 
the  probable  rents  and  profits  of  the  real  estate,  and 
also  plus  double  the  amount  of  the  probable  receipts 
from  the  sale  of  the  land.  It  must  be  conditioned  to 
account  for  and  dispose  of  the  proceeds  of  the  sale 
according  to  law,  approved  by  the  county  judge  and 
filed  with  the  clerk  of  the  court  before  the  sale.117 

The  proceeds  of  any  real  estate  sold  for  the  payment 
of  debts  and  charges  are  deemed  assets  in  the  hands  of 
the  executor  or  administrator,  the  same  as  if  they  were 
a  part  of  the  personalty,  and  himself  and  sureties  upon 
his  bond  are  chargeable  and  accountable  therefor.118 
Courts  and  judges  should  in  all  cases  require  adequate 
security  for  the  funds  derived  from  the  sale  of  a  dece- 
dent's lands,  in  order  that  such  funds  may  be  properly 
accounted  for,  and  no  license  for  the  sale  of  any  real 
estate  should  be  granted  except  upon  condition  that 
abundant  security  be  given.  Where  a  sale  was  had 
and  no  bond  given,  the  court,  on  appeal  from  the  order 
of  confirmation,  required  the  administrator  to  file  a 
bond  in  double  the  amount  of  the  proceeds  of  the  sale, 
within  twenty  days,  the  sale  to  be  set  aside  in  case  it 
was  not  filed.119 

Form  No.  147. 

LICENSE  TO  SELL  REAL  ESTATE. 
In  the  District  Court  of County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Administrator  of  the  Estate 
of  A.  B.,  Deceased,  for  License  to  Sell  Real  Estate. 

Now,  on  this  day  of  ,   19 — ,  this  cause  came   on  for 

hearing  upon  the  application  of  C.  D.,  administrator  of  the  estate  of 
A.  B.,  deceased,  praying  for  license  to  sell  the  following  described 


117  L.  O.  L.,  §  1256;  Smith  v.  Whiting,  55  Or.  399,  107  Pac.  790. 

118  Rev.  Stats.,  c.  17,  §    191,  [1455]. 

H9  McClay  v.  Foxworthy,  18  Neb.  295,  25  N.  W.  86. 

(504) 


Chap.  25]  SALES  OF  LANDS.  §  324 

real  estate  [describe  lands  as  in  petition  and  order  to  show  cause] ; 
and  it  appearing  to  me  from  the  proof  on  file  that  due  notice  of  the 
time  and  place  of  hearing  said  petition  has  been  given  to  all  persons 
interested  in  said  estate,  as  required  by  law,  and  it  further  appear- 
ing to  me,  after  full  hearing  on  the  petition,  and  from  a  consideration 
of  the  proofs  and  allegations  of  the  parties,  that  the  debts  allowed 
[owing  by  said  estate;  or,  against  said  estate]  amount  to  the  sum 

of   dollars    ($ ),    and    that    the    costs    and    expenses    of 

administration    will    amount    to    the    sum    of    about  dollars 

($ ),  and  that  the  personal  assets  of  said  estate  will  not  exceed 

the  sum  of  dollars  ($ ),  and  it  is  therefore  necessary  to 

sell  [give  description  of  the  land,  or  of  that  portion  thereof  which  the 
court  finds  it  necessary  to  sell]  to  pay  said  debts  and  expenses: 

It  is  therefore  ordered  and  adjudged  by  me,  in  consideration  of 
the  premises,  that  the  said  C.  D.  be  and  he  hereby  is  licensed  to  sell, 
in  the  manner  required  by  law,  the  following  described  property 
[describe  property  to  be  sold],  subject  to  all  liens  and  encumbrances 
existing  at  the  death  of  the  said  A.  B.,  said  lands  to  be  sold  in  the 
following  order  [state  order],  and  upon  the  following  terms,  one-third 
cash,  and  the  balance  on  three  years'  time,  with  interest  at  six  per 
cent  per  annum,  to  be  secured  by  note  and  mortgage  on  the  premises 
sold;  that  prior  to  said  sale,  said  C.  D.,  administrator,  give  a  bond, 

as    required   by   law,    in   the   sum    of   dollars    ($ ),    and 

immediately  after  said  sale  shall  make  a  due  return  of  his  proceedings 
in  the  premises  by  virtue  of  this  license. 

Given  under  my  hand  this day  of ,  19 — . 

(Signed)     W.  M., 
Judge  of  District  Court. 

Form  No.  148. 
BOND  OF  EXECUTOR  OX  SALE  OF  EEALTY. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  as  principal,  and 

C.  D.  and  E.  F.,  as  sureties,  all  of  county,  Nebraska,  are  held 

and  firmly  bound  unto-  the  judge  of  the  district  court  of county, 

Nebraska,  in  the  penal  sum  of  dollars,  for  which  payment 

well  and  truly  to  be  made  we  do  hereby  jointly  and  severally  bind 
ourselves,  our  heirs,  executors,  administrators,  and  assigns. 

Dated  this day  of ,  19 — . 

Whereas,  a  license  has  been  granted  by  the  judge  of  the  district 

couit  of  county,  Nebraska,  to  A.  B.,  executor  of  the  estate  of 

L.  M.,  deceased,  to  sell  the  following  described  realty  [describe 

(505) 


§  325  PEOBATE  AND  ADMINISTRATION.          [Chap.  25 

realty],  and  the  proceeds  of  said  sale  will  more  than  pay  the  debts 
and  charges  against  said  estate: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 

'above-bounden  A.  B.   shall  well  and  truly  account  for  all  the  proceeds 

of  said  sale  that   shall  remain  after  the  payment  of  said  debts  and 

charges,  and  dispose  of  the  same  according  to  law,  then  these  presents 

shall  be  null  and  void;  otherwise  to  be  in  full  force  and  effect. 

(Signed)     A.  B. 
C.  D. 
E.  F. 
Form  No.  149. 

GENEEAL  BOND  ON  SALE  OF  REALTY. 

[First  part  as  in  Form  No.  148.] 

Whereas,  a  license  has  been  granted  by  the  judge  of  the  district 

court  of  county,  Nebraska,  to  A.  B.,  executor  of  the  estate  of 

L.    M.,    deceased,    to    sell    the    following    described    realty    [describe 
realty] : 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  A.  B.  shall  well  and  truly  account  for  all  the  proceeds  of  said 
sale,  and  administer  the  same  according  to  law  and  the  will  of  the 
said  testator,  then  these  presents  shall  be  null  and  void;  otherwise  to 
be  in  full  force  and  effect. 

(Signed)  A.  B. 
C.  D. 
E.  F. 

§  325.    Notice  of  sale. 

It  is  the  duty  of  the  district  judge  granting  the 
license  after  the  bond,  if  one  is  required,  has  been 
approved,  to  deliver  to  the  executor  or  administrator 
a  certified  copy  of  the  license,  and  such  personal  repre- 
sentative is  thereupon  authorized  to  sell  the  real  estate 
as  therein  directed  within  one  year  after  the  date  of 
the  order,  but  not  after  that  period.120  A  sale  pur- 
porting to  be  under  such  license  after  that  date  is 
void.121 

120  Eev.  Stats.,  c.  17,  §  195,  [1459]. 

121  Campau  v.  Gillett,  1  Mich.  416,  53  Am.  Dec.  73. 

(506) 


Chap.  25]  SALES  OF  LANDS.  §  325 

Notice  of  the  time  and  place  of  sale  must  be  given  by 
posting  the  same  in  three  of  the  most  public  places  of 
the  county  in  which  the  land  is  situated,  and  by  pub- 
lication in  some  newspaper  printed  in  the  county  for 
three  consecutive  weeks  next  before  the  sale,  or,  if 
there  be  no  newspaper  printed  in  the  county,  then  in 
such  other  newspaper  as  the  judge  may  direct.  The 
notice  must  describe  the  lands  and  tenements  to  be 
sold  with  common  certainty.122 

The  sale  must  be  held  within  one  week  from  the 
date  of  the  last  publication,123  at  public  auction  within 
the  county  where  the  lands  are  situated,  between  the 
hours  of  9  o'clock  in  the  morning  and  the  setting  of 
the  sun  on  the  same  day,  and  must  be  held  open  for 
one  hour,  which  hour  shall  be  stated  in  the  notice.124 

The  executor  or  administrator  has  power,  when  the 
terms  of  sale  are  not  stated  in  the  license,  to  fix  them 
himself  under  the  same  restrictions  as  the  district 
judge,  the  matter  subsequently  coming  before  the  court 
for  approval  on  confirmation,125  which  terms  should  be 
fully  set  out  in  the  notice. 

When  the  lands  are  encumbered,  it  is  not  necessary 
that  the  notice  state  that  they  will  be  sold  subject  to 
such  encumbrances,  for  they  can  be  sold  no  other 
way.12a 

122  Rev.  Stats.,  c.  17,  §  197,  [1461]. 

123  Hartley  v.  Croze,  38  Minn.  325,  37  N.  W.  450. 

124  Rev.  Stats.,  c.  17,  §  198,   [1460], 

125  Rev.  Stats.,  c.  17,  §  200,  [1462]. 

1*6  Section  327,  post.  It  is  a  good  plan  for  the  applicant  to  state 
in  his  notice  that  a  complete  abstract  of  title  to  said  land  is  in  the 
hands  of  the  attorney  for  the  executor  or  administrator  and  may  be 
examined  by  a  purchaser  at  any  time,  and  that  the  title  sold  will  be 
as  appears  on  the  abstract. 

(507) 


§  325  PEOBATE  AND   ADMINISTRATION.          [Chap.  25 

Under  the  Oregon  practice,  such  sales  may  be  either 
public  or  private.  The  court  or  judge  has  power,  if 
it  appears  to  be  for  the  best  interests  of  the  estate, 
either  on  the  first  hearing  or  on  a  subsequent  applica- 
tion to  order  a  private  sale.  In  the  case  of  public  sales 
notice  is  given  in  the  same  manner  as  in  sales  on  execu- 
tion, but  the  court  may  order  the  sale  to  be  made  on 
the  premises.127  A  notice  particularly  describing  the 
property  must  be  posted  four  weeks  before  the  sale  in 
three  public  places  in  the  county  and  published  once 
a  week  for  the  same  period  in  a  newspaper  of  the 
county,  if  there  be  one,  or  if  there  be  none,  then  in  a 
newspaper  published  nearest  to  the  place  of  sale,  or 
in  a  newspaper  published  by  the  state  printer.12'  It 
must  be  published  for  the  full  twenty-eight  days.125 

When  the  executor  or  administrator  is  authorized  to 
sell  at  private  sale,  a  notice  shall  be  both  posted  and 
published  for  the  same  length  of  time  as  in  the  case 
of  sales  at  auction,  which  notice  must  describe  the 
property  and  terms  of  sale,  and  that  from  and  after 
a  certain  day  named  therein  he  will  proceed  to  sell 
the  real  estate  described  at  private  sale.130 

The  particular  place  in  the  city  or  village  where  the 
sale  is  to  take  place  should  be  given, — merely  designat- 
ing the  city  or  village  is  not  sufficient.131  The  notices 
must  be  both  posted  and  published  for  the  three  suc- 
cessive weeks.  Neither  of  itself  is  sufficient.132  Proof 
of  posting  and  publishing  the  notices  is  made  in  the 
usual  manner  by  affidavits  filed  in  the  district  court, 
and  are  evidence  of  the  time,  place  and  manner  of  giv- 

127  L.  O.  L.,  §  1257. 

128  L.  O.  L.,  §  1257. 

129  Q'Hara  v.  Parker,  27  Or.  174,  39  Pac.  1004. 

130  L.  O.  L.,  §  1257. 

131  Hartley  v.  Croze,  38  Minn.  325,  37  N.  W.  450. 

132  Kempe  v.  Pintard,  32  Miss.  324. 

(508) 


Chap.  25]  SALES  OF  LANDS.  §  325 

ing  the  notice.133  The  proof  of  posting  the  notice  must 
show  where  they  were  posted.  The  question  whether 
they  were  the  three  most  conspicuous  places  in  the 
county  is  determined  by  the  court  in  passing  on  the 
sufficiency  of  notice,  and  if  he  finds  that  the  notice  is 
sufficient  and  properly  given,  such  finding  is  conclusive 
that  the  places  were  the  most  conspicuous  ones.134 

Form  No.  150. 

NOTICE  OF  EXECUTOR'S  OB  ADMINISTRATOR'S  SALE. 
In  the  District  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Administrator  of  the  Estate 

of  A.  B.,  Deceased,  for  Leave  to  Sell  Real  Estate. 
Notice  is  hereby  given  that,  in  pursuance  of  an  order  of  the  Honor- 
able W.  M.,  judge  of  the  district  court  of  county,  Nebraska, 

made  on  the  day  of  ,  19 — ,  for  the  sale  of  the  real  es- 
tate hereinafter  described,  there  will  be  sold  at  public  vendue  to  the 
highest  bidder  for  cash  [if  on  credit,  state  terms],  at  the  front  door 

of  the  courthouse  in  the  city  of ,  in  said  county,  on  the 

day  of  ,  19 — ,  at  the  hour  of  10  o'clock  A.  M.,  the  following 

described  real  estate:  [Describe  said  real  estate.]  Said  sale  will 
remain  open  one  hour. 

Dated  this day  of ,  19 — . 

(Signed)     C.  D., 
Administrator  of  the  Estate  of  A.  B.,  Deceased. 

Form  No.  151. 
AFFIDAVIT  OF  POSTING  NOTICES. 

State  of  Nebraska, 

County, — ss. 

C.  D.,  being  first  duly  sworn,  on  oath  says  that  on  the  day 

of  ,   19 — ,  he  posted  notices,  of  which  the  foregoing  is  a  true 

133  Rev.  Stats.,  c.  17,  §  204,  [1468]. 

134  Dexter   v.   Cranston,   41   Mich.   448,   12   N.   W.   674;    Schaale   v. 
Wasey,  72  Mich.  414,  38  N.  W.  317;  Hugo  v.  Miller,  50  Minn.  105,  52 
N.  W.  381. 

(509) 


§§326,327       PROBATE    AND   ADMINISTRATION.          [Chap.  25 

copy,  in   the   following   described  public   places:    [State   places   where 
notices  were  posted,  said  places  being  three  of  the  most  public  places 

in  the  said  county  of .] 

(Signed)     C.  D. 

Subscribed  in  my  presence  and  sworn  to  before  me  this  day 

of ,  19—. 

(Signed)     C.  F.  D., 

Notary  Public. 

§  326.    Sales  subject  to  liens. 

All  such  sales  of  lands  are  subject  to  all  liens  and 
charges  existing  thereon  at  the  date  of  the  death  of 
decedent;  and  in  case  the  estate  shall  be  in  any  way 
liable  for  the  amount  so  secured  thereon,  the  purchaser 
is  required  to  execute  a  bond  to  the  personal  repre- 
sentative to  indemnify  the  estate  against  the  same.135 
The  usual  practice  is  for  the  purchaser  to  pay  off  the 
liens  and  deliver  the  releases  to  the  personal  repre- 
sentative. Any  agreement  between  the  representative 
and  the  purchaser  to  bind  the  estate  for  the  payment 
of  the  liens  is  void,  and  the  purchaser  can  be  compelled 
to  pay  the  amount  of  his  bid  and  take  the  property 
subject  to  the  liens.136 

§  327.    Oath  of  executor  or  administrator. 

Every,  executor  or  administrator  who  may  be  au- 
thorized by  the  court  to  sell  the  realty  of  his  decedent 
shall,  before  making  the  sale,  take  and  subscribe  an 
oath  before  the  judge  of  the  district  court,  or  some 
other  officer  authorized  to  administer  oaths,  to  use  his 
best  endeavors  to  dispose  of  the  same  to  the  advantage 

135  Rev.  Stats.,  c.  17,  §  213,  [1477];  In  re  Vasek's  Estate  (Neb.),  150 
N.  W.  1004. 

136  Maul  v.  Hellman,  39  Neb.  222,  58  N.  W.  112. 

(510) 


Chap.  25]  SALES  OF  LANDS.  §  328 

of  those  interested  therein,  which  oath  must  be  filed 
with  the  judge  of  the  district  court  before  the  con- 
firmation of  the  sale.137  The  oath  is  sufficient  if  it 
substantially  complies  with  the  wording  of  the  stat- 
ute,138 and  the  sale  will  not  be  set  aside  on  confirmation 
where  the  oath  appears  among  the  other  papers  in  the 
case,  but  is  not  marked  as  filed.139 

An  oath  is  not  required  by  the  Oregon  statutes. 

Form  No.  152. 

OATH  OF  EXECUTOR  OR  ADMINISTRATOR  ON  SALE  OF  REAL 

ESTATE. 
State  of  Nebraska, 

County, — ss. 

I,  C.  D.,  do  solemnly  swear  that,  in  the  sale  of  the  following  de- 
scribed real  estate,  to  wit  [describe  property  to  be  sold],  which  I  am 
now  about  to  offer  for  sale  under  a  license  issued  to  me  as  executor 
of  the  estate  of  A.  B.,  deceased,  by  the  Honorable  W.  M.,  judge  of 

the  district  court  of  — county,  Nebraska,  I  will  exert  my  best 

endeavors  to  sell  the  same  in  such  manner  as  will  be  most  for  the 
advantage  of  all  persons  interested  in  said  estate. 

(Signed)      C.  D. 

Subscribed  in  my  presence  and  sworn  to  before  me  this  day  of 

— ,  19—. 
(Seal)  (Signed)     C.  F.  D., 

Notary  Public. 

§  328.    Sale. 

The  sale  must  be  made  at  the  time  and  place  spe- 
cified in  the  order,140  and  under  the  direction  of  the 
representative  himself.  He  has  no  power  to  delegate 

137  Comp.  Stats.,  c.  17,  §  203,  [1467]. 

138  Montour   v.   Purdy,   11   Minn.   384,   88   Am.  Dec.   88;   Frazier  v. 
Steenrod,  7  Iowa,  339. 

139  West  Duluth  Land  Co.  v.  Kurtz,  45  Minn.  380,  47  N.  W.  1134. 

140  Eev.  Stats.,  c.  17,  §  198,  [1462]. 

(511) 


§  328  PROBATE  AND   ADMINISTRATION.          [Chap.  25 

his  power  to  an  agent,  nor  is  he  obliged  to  act  as  auc- 
tioneer or  personally  attend  to  every  detail.  The  law 
requires  him  to  supervise  the  sale,  and  he  should  be 
present  though  the  sale  be  cried  by  his  auctioneer  or 
attorney.141  If  the  license  gave  the  terms  of  the  sale, 
he  must  strictly  comply  with  them,  and  in  all  cases  must 
offer  the  lands  on  the  terms  the  notice  calls  for.142 

If  the  land  consists  of  two  or  more  parcels,  they 
should  be  offered  separately.143  Offering  them  as  one 
tract  would  be  ground  for  refusing  confirmation,144  but 
such  sale  is  not  subject  to  collateral  attack.145  He  may 
sell  a  part  only  of  the  land  described  in  the  license,146 
but  no  more  than  is  described  therein.147 

A  sale  of  more  or  other  land  than  the  license  covers, 
unless  sold  separately,  is  not  only  void  as  to  the 
excess,148  but  as  to  the  entire  tract.149 

The  executor  or  administrator  should  use  every 
effort  to  sell  the  land  for  the  highest  price  and  on  the 
best  terms  obtainable.150  Unlike  other  sales,  he  is  not 

l«  Levara  v.  McNeny,  5  Neb.  Unof.  318,  98  N.  W.  679;  Gridley's 
Heirs  v.  Phillips,  5  Kan.  349. 

142  Reynolds  v.  Wilson,   15  111.  394;   Smelser  v.  Blanchard,   15  La. 
Ann.  254. 

143  Kinney  v.  Knoebel,  51  111.   112;   Jackson  v.  Newton,   18  Johns. 
(N.  Y.)  355;  Bell  v.  Taylor,  114  Kan.  277. 

144  Bunner  v.  Rand,  19  Wis.  253;   Smith  v.  Seholtz,  68  N.  Y.  41; 
Bouldin  v.  Ewart,  63  Mo.  430;  Foley  v.  Kane,  53  Iowa,  64,  4  N.  W. 
821;  Nelson  v.  Bronenberg,  81  Ind.  193. 

145  Brown  v.  Hannah,  132  Mich.  33,  115  N.  W.  980. 

146  Ewing's  Lessee  v.  Higbee,  7  Ohio  St.,  pt.  1,  p.  198. 

147  Wakefield  v.  Campbell,  20  Me.  393. 

148  Adams  v.  Morrison,  4  N.  H.  166;  Lockwood  v.  Sturdevant,  6  Conn. 
373. 

149  Litchfield  v.  Cudworth,  15  Pick.  (Mass.)  23. 

150  Pearson  v.  Moreland,  7  Smedes  &  M.  (Miss.)  609. 

(512) 


Chap.  25]  SALES  OF  LANDS.  §  328 

obliged  to  strike  off  the  property  to  the  highest  bidder, 
if  he  considers  the  bid  below  its  reasonable  market 
value.  He  can  refuse  to  consummate  the  sale  in  order 
to  prevent  a  sacrifice  of  the  land,  and  advertise  again,151 
or  in  his  report  to  the  court  he  may  ask  to  have  the 
sale  set  aside  and  the  property  readvertised  and  sold 
again.152  He  has  no  authority  to  accept,  in  payment 
for  the  property,  anything  else  than  cash,  and  the  note 
or  bond  and  mortgage  given  for  the  deferred  payment. 
Should  he  accept  the  personal  security  of  the  pur- 
chaser, it  is  a  breach  of  his  duty,  and  he  would  be 
liable  upon  his  official  bond  should  a  loss  ensue 
thereby,  even  though  he  acted  prudently  and  in  good 
faith.153  Nor  can  he  accept  claims  or  accounts  against 
the  estate.  He  is  held  liable  for  the  full  sum  the  realty 
belonging  to  the  estate  sold  for.154  In  making  the 
sale  he  acts  solely  under  the  order  of  the  court,  and 
can  make  no  other  terms  with  the  purchasers  than 
those  prescribed  in  the  license  and  the  provisions  of 
the  statute.155  Payment  should  be  made  by  the  actual 
transfer  of  the  cash  required  by  the  bid  of  the  pur- 
chaser to  the  executor  or  administrator  on  the  date 
of  the  sale,  or  soon  thereafter.156  He  has  no  authority 
to  bind  the  estate  by  warranty,  though  he  may  so  bind 
himself,  if  he  chooses.157 

151  Rogers  v.  Dickery,  117  Ga.  819,  45  S.  E.  71. 

152  Rohlff  v.  Estate  of  Snyder,  73  Neb.  524,  103  N.  W.  49. 

153  Foster  v.  Thomas,  21  Conn.  285. 

154  Richards  v.  Adamson's  Estate,  43  Iowa,  248. 

155  Hamilton  v.  Pleasants,  31  Tex.  638,  98  Am.  Dec.  551;  Edmon- 
BOn  v.  Garnett,  33  Tex.  259. 

15«  Durnford  v.   Degruys,   8  Mart.   (La.)   220;   State  v.  Lawson,   14 
Ark.  114. 

157  Worthy  v.  Johnson,  8  Ga.  238;  Lynch  v.  Baxter,  4  Tex.  431. 
33— Pro.  Ad. 


§§329,330      PROBATE   AND  ADMINISTRATION.         [Chap.  25 

§  329.    Adjournment  of  sale. 

If,  at  the  time  appointed  for  the  sale,  the  executor 
or  administrator  shall  deem  it  for  the  best  interests 
of  all  persons  concerned  therein  that  the  sale  shall  be 
postponed,  he  may  adjourn  the  same  from  time  to  time, 
not  exceeding  in  all  three  months.158  Power  to  ad- 
journ a  personal  representative's  sale  exists  inde- 
pendent of  the  statute.159  He  should  be  present  at 
the  time  and  place  set  for  the  sale  and  notify  any  party 
present  of  the  adjournment.  He  cannot  delegate  to  his 
attorney  the  power  to  adjourn  a  sale  at  his  discretion.160 

The  adjournment  may  be  to  a  different  place  than 
that  given  in  the  notice,161  and  be  good  on  collateral 
attack.162  Notice  must  be  given  by  public  declaration 
at  the  time  and  place  appointed,  and,  if  it  be  for  more 
than  one  day,  further  notice  should  be  given  by  post- 
ing or  publishing  the  same,  as  the  circumstances  may 
permit.163 

§  330.    Executor  or  administrator  not  to  be  a  pur- 
chaser. 

"The  executor  or  administrator  making  the  sale  and 
the  guardian  of  any  minor  heir  of  the  deceased  shall 
not,  directly  or  indirectly,  purchase  or  be  interested  in 
the  purchase  of  any  part  of  the  real  estate  so  sold,  and 

158  Eev.  Stats.,  c.  17,  §  205,  [1469]. 

159  Jewett  v.  Guyer,  38  Vt.  209;  Tinkom  v.  Purdy,  5  Johns.  (N.  Y.) 
345;  Goddard  v.  Sawyer,  9  Allen  (Mass.),  78;  Kelley  v.  Green,  63  Pa. 
299. 

160  Wolf  v.  Van  Metre,  27  Iowa,  348. 

161  Jewett  v.  Guyer,  38  Vt.  209. 

162  Thompson  v.  Burdge,  60  Kan.  549,  57  Pac.  710. 

163  Kev.  Stats.,  c.  17,  §  206,  [1470]. 

(514) 


Chap.  25]  SALES  OF  LANDS.  §  330 

all  sales  contrary  to  the  provisions  of  this  section  are 
void,  but  the  guardian  may  purchase  the  land  for  his 
ward."164 

The  above-cited  statute  does  not  make  such  sales 
absolutely  void  in  the  sense  that  they  convey  no  title 
or  interest  whatever  to  the  purchaser,  but  voidable; 
the  parties  interested  having  the  right  to  have  them 
set  aside  by  motion  or  suit,  as  the  condition  of  the 
proceedings  allow,  at  any  time  after  being  apprised 
of  the  facts.165 

If  the  personal  representative  sells  to  another  per- 
son, and  before  confirmation  buys  the  land  himself,  he 
is  considered  as  a  purchaser  at  his  own  sale.166  The 
law  also  forbids  him  to  sell  to  one  who  has  a  vested 
interest  in  his  estate,  so  that  neither  husband  nor  wife 
can  be  a  purchaser  at  the  other's  sale,167  or  a  partner- 
ship the  land  sold  by  a  partner  as  an  executor.168 
Sales  of  this  class  come  under  substantially  the  same 
rule  as  where  the  personal  representative  is  the  pur- 
chaser, and  can  be  set  aside  in  the  same  way.169 

The  widow  or  an  heir  or  legatee  may  purchase  the 
land  when  the  sale  is  made  by  another  party  as  repre- 
sentative of  the  estate.170 

164  Eev.  Stats.,  c.  17,  §  199,  [1463];  L.  O.  L.,  §  1277. 

165  Veeder  v.  McKinley-Lanning  L.  &  T.  Co.,  61  Neb.  892,  86  N.  W. 
982;  Cole  v.  Boyd,  68  Neb.  146,  93  N.  W.  1003. 

166  Woodard  v.  Jaggers,  48  Ark.  250,  2  S.  W.  851;  Bland  v.  Fleeman, 
58  Ark.  84,  23  S.  W.  4. 

167  Scott's  Estate  v.  Gorton's  Exrs.,  14  La.  Ann.  111. 

168  Harrod  v.  Norris'  Heirs,  11  Mart.  (La.)  297. 

169  Musselman  v.  Eshelman,  10  Pa.  304;  Worthy  v.  Johnson,  8  Ga. 
236;  Coat  v.  Coat,  63  111.  73;  Potter  v.  Smith,  36  Ind.  231;  Smith  v. 
Drake.  23  X.  J.  Eq.  302. 

no  Rfinhart  v.  Seaman,  208  111.  448,  69  N.  E.  847;  Aubuchon  v. 
Aubuchon,  133  Mo.  260,  34  S.  W.  569. 

(515) 


§  331  PROBATE  AND  ADMINISTRATION.         [Chap.  25 

§  331.    Confirmation  of  sale. 

The  executor  or  administrator  should,  as  soon  as 
practicable  after  the  sale,  file  a  report  of  his  proceed- 
ings in  the  district  court  and  bring  the  sale  up  for 
confirmation.  The  sale  may  be  confirmed  by  the  judge 
at  chambers  during  vacation  without  the  ten  days' 
notice.171  If  the  purchaser  has  not  paid  the  amount 
of  his  bid,  personal  service  should  be  had  on  him  of 
the  order  to  show  cause  why  the  sale  should  not  be 
confirmed.  The  personal  representative  and  other 
persons  may  be  examined  on  oath  concerning  the  sale, 
value  of  the  land,  etc.,  and  if  the  district  judge  shall 
be  of  the  opinion  that  the  proceedings  were  unfair,  or 
that  the  sum  bid  is  disproportionate  to  the  value,  and 
that  a  sum  exceeding  the  bid  at  least  ten  per  cent  can 
be  obtained,  exclusive  of  the  expenses  of  a  second  sale, 
he  is  required  to  vacate  such  sale  and  direct  that  an- 
other be  had  in  the  same  manner  as  though  no  pre- 
vious sale  had  been  had.172 

If  it  appears  to  the  judge  that  it  was  legally  made 
and  fairly  conducted,  and  that  the  sum  bid  was  not 
disproportionate  to  the  value  of  the  property,  he 
should  make  an  order  confirming  the  same  and  direct- 
ing that  conveyances  be  executed  and  delivered.173 

171  Brusha  v.  Phipps,  86  Neb.  822,  126  N.  W.  856. 

172  Eev.  Stats.,  c.  17,  §  201,  [1465];  L.  O.  L.,  §  1260;  Miller  v.  Hanna, 
89  Neb.  224,  131  N.  W.  226;  Rohlf  v.  Estate  of  Snyder,  73  Neb.  524, 
103  N.  W.  49. 

173  Rev.  Stats.,  c.  17,  §  202,  [1466];  Saxon  v.  Cain,  19  Neb.  488,  26 
N.   W.   385.     It   was   held   in   this   case   that   when   the   administrator 
makes  an  application  to  sell  a  tract  of  land,  is  granted  a  license  to 
sell  an  undivided  seven-eighths  interest,  sells  the  same,  makes  his  re- 
port and  asks  for  confirmation,  the  purchaser  of  such  interest  cannot 
have  the  order  or  license  reviewed  on  error. 

(516) 


Chap.  25]  SALES  OF  LANDS.  §  331 

Form  No.  153. 

RETURN   OF   EXECUTOR    OR    ADMINISTRATOR    ON    SALE    OF 
REAL  ESTATE. 

In  the  District  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Executor  of  the  Estate  of 
A.  B.,  Deceased,  for  Leave  to  Sell  Real  Estate. 

To  the  Judge  of  the  District  Court  of  Said  County: 

I,  C.  D.,  administrator  of  said  estate,  herewith  make  return  of  my 
proceedings  in  the  sale  of  the  following  described  real  estate  [describe 
property  the  same  as  in  the  license],  in  pursuance  of  the  license 
granted  me  on  the day  of ,  19 — . 

That  in  pursuance  of  said  license  I  executed  a  bond,  which  was 
duly  approved,  and  took  the  oath  required  by  law,  before  L.  M.,  a 
notary  public  of  said  county,  and  filed  the  same  with  this  court,  and 
thereupon  I  gave  public  notice  of  the  time  and  place  of  said  sale  by 

publication   of  the  same  for  three  successive  weeks  in  the  ,  a 

newspaper  printed  and  published  in  said  county;  that  attached  hereto, 
marked  "Ex.  A,"  and  made  a  part  of  this  return,  is  the  affidavit  of 

B.  X.,  foreman  of  the  said  ,  of  the  publication  of  said  notice; 

and  by  posting  said  notice  in  three  of  the  most  public  places  in  said 

county  of  ;   that  attached  hereto,  marked  "Ex.  B,"  and  made  a 

part  of  this  return,  is  the  affidavit  of  E.  F.  of  posting  said  notices; 
that  in  pursuance  of  the  terms  of  said  notice,  and  at  the  time  and 
place  mentioned  therein  [if  an  adjournment  was  had,  state  to  what 
time  and  place,  and  how  notice  thereof  was  given]  I  offered  said  real 
estate  for  sale  at  public  auction  to  the  highest  bidder  for  cash,  and 
kept  said  sale  open  for  one  hour,  and  sold  said  real  estate  to  E.  F. 

for  the  sum  of  dollars  ($ ),  he  being  the  highest  bidder 

therefor;  that  said  sale  was  in  all  respects  fairly  conducted,  and  I 
exerted  my  best  endeavors  to  sell  said  real  estate  in  such  manner  as 
would  be  for  the  advantage  of  all  persons  interested  in  said  estate; 
and  in  my  opinion  no  greater  sum  than  the  amount  specified  can  be 
obtained  for  the  same.  All  of  which  is  respectfully  submitted. 

Dated  this  day  of  ,  19 — . 

(Signed)     C.  D., 
Administrator  of  the  Estate  of  A.  B.(  Deceased. 

Under  the  Oregon  practice,  confirmation  of  all  sales 
of  lands  for  payment  of  debts  is  required.  Within  ten 
days  after  the  sale,  the  executor  or  administrator  shall 

(517) 


§  332  PBOBATE  AND  ADMINISTRATION.          [Chap.  25 

make  a  return  of  his  proceedings  to  the  county  court. 
At  any  time  within  fifteen  days  thereafter  any  person 
cited  to  appear  on  the  application  may  file  his  objection 
to  confirmation.174 

§  332.    Confirmation — Concluded. 

An  heir  or  devisee,  or  his  grantee,  may  appear  be- 
fore the  court  and  show  cause  why  the  sale  should  not 
be  confirmed.  It  has  been  held  that  a  purchaser  can- 
not be  heard  on  the  return  to  the  order,  and  is  pre- 
cluded from  objecting  to  his  own  act  in  bidding  in  the 
property.175  Upon  such  hearing  the  court  passes  on 
the  regularity  of  the  entire  proceedings,  but  as  the 
jurisdiction  of  the  court  to  grant  the  license  and  the 
necessity  for  the  sale  have  already  been  determined  in 
the  hearing  on  the  application,  they  will  be  presumed 
to  have  been  regular.176  The  court  therefore  passes  on 
the  acts  of  the  executor  or  administrator  in  making 
the  sale,  which  include  the  bond,  oath,  publication  and 
posting  of  notices,  adjournments  and  notices  of  the 
same,  the  sufficiency  of  the  price  and  the  right  of  the 
bidder  to  become  a  purchaser.177 

Confirmation  of  a  sale  is  necessary  to  give  it  valid- 
ity.178 The  title  does  not  pass  from  the  estate  until 
the  order  is  made  and  entered  and  the  deed  executed 

174  L.  O.  L.,  §  1258;  In  re  Seidel's  Estate,  64  Or.  320,  130  Pac.  55. 

175  Levy  v.  Biley,  4  Or.  398. 

176  Saxon  v.  Cain,  19  Neb.  488,  26  N.  W.  385. 

177  Dawson  v.  Helmes,  30  Minn.  107,  14  N.  W.  462;  Culver  v.  Harden- 
brugh,  37  Minn.  225,  33  N.  W.  792;   Allen  v.  Shephard,  87  111.  314; 
Koehler  v.  Ball,  2  Kan.  173. 

178  In  re  Seidel's  Estate,  64  Or.  325,  130  Pac.  55. 

(518) 


Chap.  25]  SALES  OF  LANDS.  §  332 

and  delivered  in  pursuance  thereof.179  A  deed  exe- 
cuted before  confirmation  will  not  pass  the  title.180 

Confirmation  cures  irregularities  in  making  the  sale, 
as  where  the  administrator  sold  the  land  on  credit, 
when  the  court  required  it  to  be  for  cash,181  or  where 
the  license  is  granted  to  two  administrators,  and,  one 
refusing  to  take  part  in  the  proceeding,  the  other 
qualifies  and  makes  the  sale  according  to  law,182  or  a 
failure  to  sell  the  tracts  separately,  according  to  the 
order,183  or  a  slight  departure  from  the  order  of  the 
court  as  to  the  terms;184  provided  it  appears  to  the 
satisfaction  of  the  court  that  the  sale  has  been  fairly 
conducted,  the  proceedings  regular,  no  question  of 
jurisdiction  involved,  and  the  best  possible  price  ob- 
tained. If  the  land  to  be  sold  consists  of  several 
tracts,  the  court  may  approve  and  confirm  the  sale  of 
one  or  more  of  them,  the  sales  having  been  made  sepa- 
rately, and  vacate  the  sale  of  the  others;  and  the  fact 
that  one  or  more  sales  have  been  held  invalid  does 
not  in  any  manner  affect  the  validity  of  a  deed  to  the 
tract  or  tracts  the  sale  of  which  was  upheld  and 
confirmed.185 

If  mortgaged  land  is  sold  for  its  full  value  and  the 
administrator  pays  off  the  mortgage  from  the  proceeds 

179  Valle    v.    Fleming,    19    Mo.   454;    Brown's   Appeal,    68   Pa.    53; 
Greenough  v.  Small,  137  Pa.  132,  20  Atl.  553. 

180  Eea  v.  McEachron,  13  Wend.  (N.  Y.)  465. 

181  McCully  v.  Chapman,  58  Ala.  325. 

182  Osman  v.  Traphagen,  23  Mich.  80;  Wilkerson  v.  Allen,  67  Mo. 
502. 

183  Meadows  v.  Meadows,  81  Ala.  451,  1  South.  29. 

184  Jackson  v.  Magruder,  51  Mo.  55;   Brubaker  v.  Jones,  23  Kan. 
411;  Jacobs'  Appeal,  23  Pa.  477.    . 

185  Bacon  v.  Morrison,  57  Mo.  68. 

(519) 


§  332  PROBATE  AND  ADMINISTRATION.         [Chap.  25 

of  the  sale,  confirmation  cures  his  failure  to  sell  subject 
to  the  mortgage.185* 

Except  where  jurisdictional  questions  are  involved, 
confirmation  is  largely  a  matter  within  the  discretion 
of  the  district  judge,  and  his  order  will  be  rarely 
disturbed.186 

The  title  in  the  purchaser  dates  back  to  the  date  the 
land  is  struck  off  to  him  at  the  sale;  and  any  lease  or 
contract  affecting  the  land  made  by  the  executor,  ad- 
ministrator, heir  or  devisee,  or  alienee  of  either,  is 
void  as  to  him.187 

A  purchaser  cannot  be  compelled  to  pay  the  entire 
price  for  the  property  until  the  sale  is  confirmed  and 
deed  ordered.  If  he  then  refuses  to  pay,  the  executor 
or  administrator  may  obtain  an  order  from  the  dis- 
trict court  to  compel  him  to  comply  with  his  bid,  which 
order  is,  in  effect,  a  judgment  for  specific  performance, 
and  enforced  the  same  way.188 

Form  No.  154. 

CONFIRMATION  OF  SALE. 
In  the  District  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Executor  of  the  Estate  of 
A.  B.,  Deceased,  for  Leave  to  Sell  Real  Estate. 

An  order  to  show  cause  why  the  sale  of  the  following  described  real 
estate  [describe  real  estate  as  in  license]  should  not  be  confirmed, 

having  been  made  on  the day  of ,  19 — ,  and  given  to  all 

persons  interested  therein,  and  it  appearing  to  me  that  notice  was 
given  of  the  time  and  place  of  said  sale  according  to  law,  that  the  sale 
of  said  real  estate  was  had  according  to  said  notice,  was  legally  made 

I85a  In  re  Vasek's  Estate  (Neb.),  150  N.  W.  1004. 

186  in  re  Estate  of  Parker,  72  Neb.  601,  101  N.  W.  283. 

187  Inman's  Admr.  v.  Gibbs,  47  Ala.  305. 

188  Maul  v.  Hellman,  39  Neb.  222,  58  N.  W.  112. 

(520) 


Chap.  25]  SALES  OF  LANDS.  §  333 

and  fairly  conducted,  and  that  the  sum  bid  is  not  disproportionate  to 
the  value  of  the  property  sold,*  it  is  therefore  ordered  and  adjudged 
by  me  that  the  said  sale  be  and  the  same  hereby  is  confirmed,  and  that 
C.  D.,  administrator  of  the  estate  of  said  A.  B.,  deceased,  is  hereby 
directed,  as  such  executor,  to  execute  a  deed  of  conveyance  to  E.  F., 
the  purchaser  of  the  above-described  premises. 

Dated  this  day  of  ,  19 — . 

(Signed)     W.  M., 
Judge  of  District  Court, County. 

§  333.    Sale  of  contract  interest  in  land. 

When  the  equity  of  the  decedent  in  land  held  by  a 
contract  of  purchase  or  bond  for  a  deed  is  sold,  the 
sale  is  made  subject  to  all  the  payments,  if  any,  to  be- 
come due,  and  the  sale  should  not  be  confirmed  until  the 
purchaser  execute  a  bond  to  the  executor  or  adminis- 
trator for  the  benefit  and  indemnity  of  the  person  en- 
titled to  the  interest  of  the  deceased  in  the  land  so  con- 
tracted for,  in  double  the  whole  amount  of  payments 
thereafter  to  become  due  on  such  contracts,  with  sure- 
ties as  the  judge  of  the  district  court  shall  approve.  If 
there  are  no  further  payments  to  be  made,  a  bond  is 
unnecessary.189  The  conditions  of  the  bond  are  that 
the  purchaser  will  make  all  payments  for  such  land 
as  shall  become  due  after  the  sale,  and  fully  indemnify 
the  executor  or  administrator  and  the  person  so  en- 
titled against  all  demands  and  expenses,  by  reason  of 
any  covenants  and  agreements  contained  in  said  con- 
tract.190 Upon  the  confirmation  of  such  sale,  the  exec- 
utor or  administrator  executes  to  the  purchaser  an 
assignment  of  the  contract,  which  assignment  vests  in 
the  purchaser,  his  heirs  and  assigns,  all  the  right,  title 

189  Rev.  Stats.,  c.  17,  §  2CS,  [1472];  L.  0.  L.,  §  1267. 
i»o  Eev.  Stats.,  c.  17,  §  209,  [1473];  L.  O.  L.,  §  1267. 

(521) 


§  333  PROBATE  AND  ADMINISTRATION.         [Chap.  25 

and  interest  of  the  estate  in  and  to  the  land  sold  at 
the  time  of  the  sale,  and  such  purchaser  has  the  same 
rights  and  remedies  against  the  vendor  which  the 
deceased  would  have  were  he  living.191 

Form  No.  155. 

BOND    OF    PURCHASER    OP    VENDEE'S    INTEREST    IN    LAND 

CONTRACT. 

Know  all  men  by  these  presents,  that  we,  E.  F.,  as  principal,  and 

G.  H.,  and  L.  M.,  as  sureties,  all  of county,  Nebraska,  are  held 

and  firmly  bound  unto  C.  D.,  executor  of  the  estate  of  A.  B.,  deceased, 
in  the  penal  sum  of dollars  [double  the  amount  unpaid  on  con- 
tract or  mortgage],  for  which  payment  well  and  truly  to  be  made  we 
do  hereby  jointly  and  severally  bind  ourselves,  our  heirs,  executors, 
administrators,  and  assigns. 

Dated  this day  of ,  19 — , 

Whereas,  on  the  day  of  ,  19 — ,  E.  F.  purchased  at 

public  auction  of  C.  D.,  as  executor  of  the  estate  of  A.  B.,  deceased, 
the  interest  of  said  estate  in  a  contract  for  the  purchase  of  the  fol- 
lowing described  realty  [describe  property  as  in  license],  and  there 

is  still  unpaid  on  said  contract  the  sum  of  dollars   ($ —   — ), 

payable  as  follows  [state  when  payments  become  due]: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  E.  F.  shall  well  and  truly  pay  or  cause  to  be  paid  to  R.  S.,  the 
vendor  in  said  contract,  his  heirs,  executors,  administrators,  or  as- 
signs, all  the  payments  set  forth  in  said  contract  yet  to  become  due, 
and  fully  indemnify  said  C.  D.,  executor,  and  all  other  persons  entitled 
to  any  interest  in  said  land  so  contracted  as  heirs  or  devisees  of  said 
A.  B.,  against  all  demands,  costs,  charges,  and  expenses,  by  reason  of 
the  covenants  and  agreements  in  said  contract  contained,  then  these 
presents  shall  be  null  and  void;  otherwise  to  be  and  remain  in  full 
force  and  effect. 

(Signed)  E.  F. 
G.  H. 
L.  M. 

191  Rev.  Stats.,  c.  17,  §  210,  [1474] ;  L.  O.  L.,  §  1268. 
(522) 


Chap.  25]  SALES  OF  LANDS.  §  334 

The  foregoing  bond  and  surety  approved  by  me  this  day  of 

(Signed)     W.  M., 
Judge  of  the  District  Court,  County. 

Form  No.  156. 

CONFIRMATION   OF   SALE    OF    CONTRACT    EQUITY   IN    REAL 

ESTATE. 

[Follow  Form  No.  154  te  *,  then  say:]  And  the  bond  of  the  pur- 
chaser of  said  premises,  E.  F.,  conditioned  that  said  E.  F.  will  make  all 
payments  for  such  land  as  shall  become  due  after  the  date  of  such 
sale,  and  will  fully  indemnify  said  C.  D.,  executor,  and  C.  B.,  the  heir, 
of  said  A.  B.,  against  all  demands,  costs,  charges,  and  expenses  by 
reason  of  any  covenant  or  agreement  contained  in  the  said  contract 
for  the  purchase  of  said  premises  entered  into  between  L.  M.  and  said 
A.  B.,  having  been  approved  by  me  both  as  to  form  and  sufficiency 
of  sureties,  it  is  therefore  ordered  and  adjudged  by  me  that  said  sale 
be  and  the  same  hereby  is  confirmed,  and  C.  D.,  executor  of  the  estate 
of  A.  B.,  deceased,  is  hereby  directed,  as  such  executor,  to  execute  a 
deed  of  conveyance  to  said  E.  F.,  the  purchaser  of  the  above-described 
premises. 

Dated  this day  of ,  19 — . 

(Signed)     W.  M., 
Judge  of  District  Court,  County. 

§  334.    Death  of  executor  or  administrator  pending 

proceedings. 

When  an  executor  or  administrator  dies  pending  the 
proceedings  for  the  sale,  the  administrator  de  bonis 
non  may  go  on  with  the  proceedings,  the  administra- 
tion being  continued  by  the  same  official,  but  a  dif- 
ferent person.  If  the  license  has  not  issued,  he  should 
be  substituted  and  license  granted  to  him.192  The 
same  principle  applies  where  his  death  occurs  after 
license.  He  should  make  the  sale  and  report  to  the 
court  the  same  as  his  predecessor  would  have  done, 

1»2  Trumble  v.  Williams,  18  Neb.  144,  24  N.  W.  716. 

(523) 


§  335  PROBATE  AND  ADMINISTRATION.          [Chap.  25 

and  the  court  can  empower  him  to  execute  and  deliver 
the  proper  conveyances.193 

§  335.  Sales  by  foreign  executors  or  administrators. 
When  any  executor  or  administrator  shall  be  ap- 
pointed in  any  state  or  territory,  or  in  any  foreign 
country,  on  the  estate  of  any  person  dying  out  of  this 
state,  and  no  executor  shall  be  appointed  within  this 
state,  the  foreign  executor  or  administrator  may  file  a 
copy  of  his  appointment,  duly  authenticated,  in  the 
district  court  of  the  county  in  which  there  may  be  any 
real  estate  of  the  deceased,  and  upon  filing  such  copy 
be  licensed  to  sell  the  real  estate  for  the  same  purposes 
and  in  the  same  manner  as  if  he  were  appointed  in  this 
state.194  If  the  decedent  was  a  resident  of  this  state 
at  the  time  of  his  death,  and  letters  testamentary  or  of 
administration  issued  upon  his  estate  in  another  state 
or  foreign  country,  such  letters  would  not  confer  upon 
his  executor  or  administrator  any  authority  to  act  in 
this  state  in  any  manner,  and  a  license  to  sell  his  real 
estate  in  this  state  could  only  be  granted  to  an  exec- 
utor or  administrator  appointed  by  the  county  court 
of  that  county  which  was  the  place  of  his  domicile  at 
the  time  of  his  death.195  If  the  foreign  executor  or 
administrator  file  a  duly  authenticated  copy  of  his 
bond  with  the  district  judge  granting  him  the  license 
of  sale,  and  it  shall  appear  therefrom  that  he  is  bound 
by  sufficient  sureties  in  the  state  or  country  in  which 

193  Gress  Lumber  Co.  v.  Leitner,  91  Ga.  810,  18  S.  E.  63;  Baker  v. 
Bradsby,  23  111.  632;  Brown  v.  Eedwyne,  16  Ga.  67. 

194  Rev.  Stats.,  c.  17,  §  214,   [1477]. 

195  McAnulty  v.  McClay,  16  Neb.  420,  20  N.  W.  266. 

(524) 


Chap.  25]  BALES  OF  LANDS.  §§  336,  337 

he  received  his  appointment  to  account  for  the  pro- 
ceeds of  the  sale  for  the  payment  of  debts  or  legacies 
and  charges  of  administration,  no  other  bond  need  be 
required,  but,  if  the  foreign  bond  be  not  filed,  the  judge 
shall  require  him  to  give  a  bond  with  the  same  condi- 
tions as  that  of  the  local  administrator,  except  that 
the  proceeds  are  to  be  disposed  of  according  to  the 
law  of  the  state  or  country  where  he  was  appointed.196 
If  the  license  empowers  him  to  dispose  of  more  realty 
than  is  sufficient  to  pay  the  debts,  legacies  and  charges 
of  administration,  he  must  give  a  bond  conditioned  to 
account  for  such  excess,  and  dispose  of  the  same 
according  to  law.197 

§  336.    Taxation  of  costs. 

The  sale  of  a  decedent's  real  estate  for  the  payment 
of  his  debts  is  for  the  benefit  of  his  estate,  and  the  costs 
of  the  application,  sale  and  deed  should  be  paid  there- 
from unless  it  appear  to  the  district  judge  on  the  hear- 
ing that  the  application  is  unreasonable,  and  the  objec- 
tions thereto  are  sustained,  in  which  event  the  court 
may,  in  its  discretion,  award  costs  to  the  party  pre- 
vailing, and  enforce  payment  thereof.198 

§  337.    Executor's  or  administrator's  deed. 

The  deed  of  an  executor  or  administrator  should 
refer  to  the  authority  under  which  he  acted,  and  con- 
tain apt  words  to  convey  the  estate  of  the  decedent, 
as  distinguished  from  his  own  private  estate.199  It 

19«  Eev.  Stats.,  c.  17,  §  215,  [1479]. 

197  Rev.  Stats.,  c.  17,  §  216,  [1480]. 

198  Rev.  Stats.,  c.  17,  §  220,  [1484]. 

199  Griswold  v.  Bigelow,   6  Conn.   258;   Brown   v.  Redwyne,  16  Ga. 
67;  Bobb  v.  Barnum,  59  Mo.  394;  Kingsbury  v.  Wild,  3  N.  H.  30. 

(525) 


§  337  PEOBATE  AND  ADMINISTRATION.         [Chap.  25 

should  also  state  that  the  estate  conveyed  belonged  to 
the  decedent.  If  the  deed  recites  a  compliance  with 
all  the  formalities  required  by  the  statute,  it  consti- 
tutes prima  facie  evidence  of  the  regularity  of  the  pro- 
ceedings.200 As  an  executor's  or  administrator's  deed 
executed  without  the  order  of  the  court  is  void,  his 
sole  power  being  derived  from  a  compliance  with  the 
statute,  enough  of  the  proceedings  by  which  the  order 
was  obtained  should  appear  on  the  face  thereof  to 
show  his  authority  therefor,  and  the  fact  and  circum- 
stances under  which  it  was  executed.201  Mere  mis- 
recitals  in  the  deed  as  to  the  order  of  sale  or  previous 
proceedings  will  not  invalidate  the  conveyance  of  the 
title,  if  enough  appears  from  the  whole  record  and 
proceedings  to  show  the  true  facts  and  circumstances 
under  which  the  deed  was  made.202 

The  Oregon  statute  requires  the  executor's  or  ad- 
ministrator's deed  to  set  out  the  date  of  the  order 
directing  the  sale,  and  the  book,  number  thereof,  and 
the  page  containing  the  same,  and  the  date  of  the  order 
confirming  the  sale,  giving  the  book  and  page  where 
it  is  recorded.203 

200  Chase  v.  Whiting,  30  Wis.  544;  Doe  d.  Clements  v.  Henderson,  4 
Ga.  148. 

201  Goforth's  Lessee  v.  Longworth,  4  Ohio,   129,   19  Am.  Dec.   588; 
Atkins   v.  Kinnan,  20  Wend.    (N.  Y.)    241,  32   Am.  Dec.  540;    Doe  d. 
Clements  v.  Henderson,  4  Ga.  148,  48  Am.  Dec.  216;  Tutt  v.  Boyer,  51 
Mo.  425 ;  Watson  v.  Watson,  10  Conn.  77. 

202  Garner  v.  Tucker,  61  Mo.  427;  Thomas  v.  Le  Baron,  8  Met.  (Mass.) 
355;  Lessee  of  Glover's  Heirs  v.  Ruffin,  6  Ohio,  255. 

203  L.  O.  L.,  §  1261. 

(526) 


Chap.  25]  SALES  OF  LANDS.  §  337 

Form  No.  156a — Oregon. 
EXECUTOR'S  OR  ADMINISTRATOR'S  DEED. 

Know  all  men  by  these  presents,  that  in  pursuance  of  an  order  of  the 

Honorable  J.  K.,  county  judge  of county,  Oregon,  made  on  the 

day  of  ,  19 — ,  and  recorded  in  Book  Number  ,  of 

the  probate  records  of  said  county,  I  was  licensed  by  said  judge  to  sell 
at  public  auction,  in  the  manner  provided  by  law,  the  real  estate  in 
said  order  described;  that  thereupon  I  gave  notice  of  the  time  and  place 
of  sale  as  required  by  law,  and  at  the  time  and  place  therein  specified 
sold  the  real  estate  hereinafter  described  at  public  auction  to  C.  D.,  of 

the  county  of ,  and  state  of  ,  he  being  the  highest  bidder 

therefor;  that  said  sale  was  on  the  day  of  ,  19 — ,  duly 

reported  to  said  county  judge,  and  on  the  day  of  ,  19 — , 

an  order  confirming  said  sale  and  directing  the  execution  and  delivery 
•of  a  deed  to  said  purchaser,  was  made  by  said  judge  and  entered  in 
Book  Number ,  page ,  of  the  probate  records  of  said  county. 

[Balance  as  in.  Form  No.  157.] 

Form  No.  157. 
EXECUTOR'S  OR  ADMINISTRATOR'S  DEED. 

Know  all  men  by  these  presents,  that,  in  pursuance  of  an  order  of 

the  Honorable  W.  M.,  judge  of  the  district  court  of  county, 

Nebraska,  made  on  the  day  of  ,  19 — ,  I  was  licensed  by 

said  judge  to  sell  at  public  auction,  in  the  manner  provided  by  the 
law,  the  real  estate  hereinafter  described;  that  thereupon  I  gave  notice 
of  the  time  and  place  of  said  sale,  as  required  by  law,  and  at  the  time 
•and  place  therein  specified,  after  said  sale  had  been  held  open  one  hour, 

sold  said  real  estate  at  public  auction  to  E.  F.,  of  the  county  of , 

.state  of ,  he  being  the  highest  bidder  therefor;  that  said  sale 

was  thereupon  reported  to  said  judge  of  the  district  court,  and  by  him 
in  all  things  confirmed,  and  I  was  ordered  to  make  a  deed  of  convey- 
ance of  said  premises  to  said  purchaser. 

Now,  therefore,  I,  C.  D.,  administrator  of  the  estate  of  A.  B.,  de- 
ceased, in  consideration  of  the  premises  and  the  sum  of  dollars 

($ )  so  bid  and  paid  by  said  E.  F.,  and  by  virtue  of  the  powers1 

vested  in  me  by  said  order  and  proceedings,  do  by  these  presents  grant, 
•sell,  and  convey  unto  the  said  E.  F.,  and  to  his  heirs  and  assigns,  the 
real  estate  described  as  follows  [describe  property],  with  all  the  heredita- 
ments and  appurtenances  thereunto  belonging  or  in  any  wise  apper- 

(527) 


.§337  PROBATE  AND  ADMINISTRATION.         [Chap.  25 

taining,  to  have  and  to  hold  the  same  to  him,  the  said  E.  F.,  and  to  his 
heirs  and  assigns,  forever. 

In  witness  whereof  I  have  hereunto  set  my  hand  this  day  of 

,  19-. 

(Signed)     C.   D., 

Administrator  of  the  Estate  of  A.  B.,  Deceased. 
Witness: 

(Signed)     L.  M. 

State  of  Nebraska, 

County, — ss. 

On  this  day  of  ,   19 — ,  before  me,  the  undersigned,  a 

notary  public,  duly  commissioned  and  qualified,  in  and  for  said  county, 
personally  appeared  C.  D.,  administrator  of  the  estate  of  A.  B.,  deceased, 
personally  known  to  me  to  be  the  identical  person  whose  name  is  sub- 
scribed to  the  foregoing  instrument  as  grantor,  and  acknowledged  the 
execution  thereof  to  be  his  voluntary  act  and  deed  as  said  administrator 
for  the  purposes  therein  expressed. 

Witness  my  hand  and  official  seal  the  day  and  year  above  written. 
(Seal)  (Signed)     C.  F.  D. 

Notary  Public. 

Form  No.  158. 

ASSIGNMENT    OF    LAND    CONTRACT    BY    EXECUTOR   OR    AD- 
MINISTRATOR. 

Know  all  men  by  these  presents,  that,  in  pursuance  of  an  order  of 

the  Honorable  W.  M.,  judge  of  the  district  court  of county, 

Nebraska,  made  on  the  day  of ,  19 — ,  I  was  licensed  by 

said  judge  to  sell  at  public  auction,  in  the  manner  provided  by  law, 
the  interest  of  the  estate  of  A.  B.  as  vendee  in  a  contract  for  the  pur- 
chase of  the  real  estate  hereinafter  described;  that  thereupon  I  gave 
notice  of  the  time  and  place  of  sale,  as  required  by  law,  and  at  the 
time  and  place  therein  specified,  after  said  sale  had  been  held  open  one 
hour,  sold  said  interest  of  said  estate  as  vendee  to  E.  F.,  he  being  the 
highest  bidder  therefor;  that  said  sale  was  thereupon  reported  to  said 
judge  of  the  district  court,  and  the  said  E.  F.  filed  his  bond  with  said 
judge  as  required  by  law,  and  the  same  was  approved,  and  said  sale 
in  all  things  confirmed,  and  I  was  ordered  to  make  an  assignment  of 
the  interest  of  said  estate  as  vendee  in  said  contract  to  said  purchaser. 

Now,  therefore,  I,  C.  D.,  administrator  of  the  estate  of  A.  B.,  de- 
ceased, in  consideration  of  the  premises  and  the  sum  of  dol- 

(528) 


Chap.  25]  SALES  OF  LANDS.  §  338 

lars    ($ )    so  bid  and  paid  by  said  E.  F.,  and  by  virtue  of  the 

powers  vested  in  me  by  said  order  and  proceedings,  do  by  these  presents 
sell,  assign,  and  transfer  unto  the  said  E.  F.,  his  heirs  and  assigns,  all 
the  right,  title,  and  interest  of  said  estate  in  and  to  a  certain  contract 
for  the  purchase  of  the  following  described  real  estate  [describe  prop- 
erty], which  said  contract  is  hereto  attached. 

In  witness  whereof  I  have  hereunto  set  my  hand  this  day  of 

,  19-. 

(Signed)     C.  D., 

Administrator  of  the  Estate  of  A.  B.,  Deceased. 
Witness : 

L.  M. 
[Acknowledgment,   as  in  Form  No.   157.] 

§  338.    Title  of  purchaser. 

The  purchaser  takes  the  interest  which  the  deceased 
had  in  the  land  at  his  death,  with  all  the  rights,  heredit- 
aments and  appurtenances  belonging  thereto,  includ- 
ing growing  crops  which  would  pass  with  the  land.204 
The  rule  of  caveat  emptor  applies  to  the  sale,  and  the 
prospective  purchaser  should  always  investigate  the 
title  and  inform  himself  of  any  existing  equities  as  well 
as  liens,205  and  he  cannot  have  the  sale  set  aside  on 
the  ground  that  the  deceased  had  no  title  to  the  prop- 
erty when  the  records  would  have  disclosed  such 
information  to  him.206 

There  is  considerable  authority  to  the  effect  that  the 
rule  goes  no  further  than  to  cover  defects  disclosed 
by  the  records,  and  in  the  case  of  a  bona  fide  purchaser 

204  Backenstoss  v.  Sahler'a  Admrs.,  33  Pa.  251;  Mcllvaine  v.  Harris, 
20  Mo.  457,  64  Am.  Dec.  196. 

205  Motley  v.  Motley,  53  Neb.  375,  73  N.  W.  738;  Bingham  v.  Maxcey, 
15  111.  295. 

206  Beene's  Admr.  v.  Collenberger,  38  Ala.  647;  Bennett  v.  Owen,  13 
Ark.  177. 

34— Pro.  Ad.  (529) 


§  339  PROBATE  AND  ADMINISTRATION.          [Chap.  25 

will  not  reach  secret  equities  attaching  to  the  title.207 
In  such  case  the  purchaser  could  rescind  the  sale  or 
interpose  the  defense  of  no  consideration  to  the  action 
or  proceeding  to  recover  the  purchase  price.208 

If  the  land  is  in  the  actual  possession  of  other  par- 
ties, the  executor  or  administrator  is  under  no  obli- 
gation to  put  the  purchaser  in  possession,  and  the 
latter  must  himself  pay  the  cost  of  acquiring  what  he 
has  bought.209 

§  339.    Sale  of  land  in  which  a  homestead  is  included. 

The  lots  or  land  occupied  by  decedent  as  a  home 
during  his  lifetime  are  subject  to  the  demands  of  his 
creditors,  to  the  extent  of  the  difference  between  the 
homestead  exemption  of  two  thousand  dollars  and  the 
value  of  decedent's  interest  therein  at  the  time  of  his 
death.210 

There  is  no  proceeding  by  statute  for  the  sale  of 
lands  by  the  personal  representative  in  order  to  obtain 
this  difference  and  apply  it  on  the  debts,  nor  is  there 
any  action  at  law  which  would  reach  it.  It  has  been 
held  that  the  personal  representative  may  apply  to 
the  district  court  for  a  decree  to  sell  the  land  in  which 
the  widow  has  a  homestead  exemption,  that  the  court, 
by  virtue  of  its  general  inherent  equity  powers,  has 

207  Wilson  v.  Holt,  18  Ala.  528,  3  South.  321;   Banks  v.  Ammon,  27 
Pa.  172;   Rorer,  Judicial  Sales,  §462. 

208  Roehl  v.  Pleasant,  31  Tex.  45,  98  Am.  Dec.  515. 

209  Rudolph  v.  Underwood,  88  Ga.  664,  16  S.  E.  55. 

210  Meisner  v.  Hill,  92  Neb.  435,  138  N.  W.  583;  Perry  Livestock  Co. 
v.  Biggs,  4  Neb.  Unof.  440,  94  N.  W.  712.     The  homestead  exemption 
cannot  be  sold  for  debts,  but  according  to  the  decision  in  the  Meisner- 
Hill  case,  the  liability  of  the  excess  above  the  two  thousand  dollars  is 
clearly  admitted. 

(530) 


Chap.  25]  SALES  OF  LANDS.  §  339 

jurisdiction  to  order  a  sale  and  the  payment  of  the 
two  thousand  dollars  of  the  proceeds  to  the  widow,  or 
as  the  court  may  direct  for  her  benefit,  the  balance  to 
be  applied  as  in  other  cases.211 

211  Wardell  v.  Wardell,  71  Neb.  774,  89  N.  W.  674.  The  holding  in 
the  Meisner-Hill  case  overrules  but  one  point  in  the  Wardell  case,  i.  e., 
the  definition  of  a  homestead.  The  court  concedes  that  the  decision 
in  the  Wardell  ease  was  what  the  law  and  fa«ts  called  for,  but  say  that 
the  definition  of  a  homestead  by  Commissioner  Ames  was  too  broad, 
including  estates  having  no  debts,  when  he  should  have  limited  it,  as 
was  done  in  the  case,  to  estates  where  there  were  debts. 

(531) 


CHAPTER  XXVI. 

COLLATERAL  ATTACK   ON  PERSONAL   REPRE- 
SENTATIVE'S SALES. 

S  340.  When  Action  may  be  Brought. 

341.  Void  and   Irregular  Sales. 

342.  Attacking  the  License. 

343.  Attacking  the  License — The  Petition. 

344.  Attacking  the  License — Order  to  Show  Causa. 

345.  Jurisdictional   Irregularities. 

346.  Failure  to  Give  Bond. 

347.  Failure  to  Take  Oath. 

348.  Notice  of  Time  and  Place  of  Sale. 

349.  Compliance  With  the  Order  of  Sale. 

350.  Purchase  by  Disqualified  Party. 

351.  Fraud. 

352.  Rights  of  Purchaser  at  Void  Sale. 

§  340.    When  action  may  be  brought. 

An  heir  or  devisee,  or  person  claiming  under  him, 
can  maintain  an  action  to  set  aside  a  void  sale  of  his 
lands  by  an  executor  or  administrator  within  ten  years 
from  the  date  of  the  confirmation  of  the  same.1  If 
he  is  under  legal  disability  when  his  cause  of  action 
accrued,  he  may  bring  it  within  ten  years  after  such 
disability  is  removed.2 

In  Oregon  the  suit  must  be  brought  within  five  years 
from  the  removal  of  disability.3 

1  Holmes  v.  Mason,  80  Neb.  448,  114  N.  W.  606;  Brandon  v.  Jensen, 
74  Neb.  569,   104  N.  W.  1054;   Hobson  v.  Huxtable,  79  Neb.  334,  112 
N.  W.  658;  Mitchell  v.  Campbell,  19  Or.  213,  24  Pac.  456;  Fuller  v. 
Hager,  47  Or.  242,  83  Pae.  782. 

2  Civ.  Code,  §§  16,  17;  Albers  v.  Kozeluh,  68  Neb.  522,  94  N.  W.  521, 
97   N.   W.   646. 

3  L.  O.  L.,  §  17. 

(532) 


Chap.  26]  EECOVEEY    OF    LANDS    SOLD.  §  340 

The  limitation  of  time  for  setting  aside  irregular 
sales  is  five  years  from  the  date  of  confirmation,  or  if 
the  party  be  under  disability,  within  five  years  from 
the  removal  of  such  disability,  residence  outside  of  the 
state  being  equivalent  to  disability.4 

Under  the  Oregon  practice,  the  statute5  fixes  the 
limitation  at  five  years,  without  any  saving  clause. 
It  would  seem,  however,  that  the  general  provision  of 
law6  would  govern. 

In  neither  case  will  the  action  lie  if  the  heir  or  dev- 
isee has  received  and  retained,  with  knowledge  of  the 
facts,  any  part  of  the  proceeds  of  the  sale,7  such  acts 
operating  as  an  estoppel  even  though  the  sale  was  void. 
Nor  will  equity  permit  a  party  to  recover  the  land  or 
a  share  in  it  and  retain  the  proceeds  of  its  sale.  If 
he  brings  suit  within  the  proper  time  after  obtaining 
knowledge  of  the  facts,  the  purchaser  is  entitled  to 
reimbursement,  but  must  account  for  the  use  of  the 
premises.8 

As  the  action  accrues  on  date  of  confirmation,  it  may 
be  brought  by  a  remainderman  during  the  continuance 
of  the  previous  estate.9 

4  Rev.  Stats.,  c.  17,  §§  221,  222,  [1485],  [I486]. 

5  L.  0.  L.,  §  7160. 
«  L.  O.  L.,  §  17. 

7  Mote  v.  Kleen,  83  Xeb.  585,  119  N.  W.  1125;   Staats  v.  Wilson,  76 
Neb.  204,  107  N.  W.  230,  109  N.  W.  379;  Browne  v.  Coleman,  62  Or.  461, 
125  Pac.  279. 

8  Cole  v.  Boyd,  68  Neb.  146,  93  N.  W.  1003;  Browne  v.  Coleman,  62 
Or.  461,   125   Pac.   279.     In  the  Cole  case  the  profits  received  exceeded 
the  taxes  and  the  purchase  price  and  the  court  held  that  the  plaintiff  was 
under  no  obligation  to  offer  to  reimburse  such  purchaser. 

»  Lyons  v.  Carr,  77  Neb.  833,  110  N.  W.  785;  First  Nat.  Bank  of 
Perry  v.  Pilger,  78  Neb.  168,  110  N.  W.  704.  In  the  case  first  cited  a 
homestead  worth  less  than  two  thousand  dollars  was  sold  and  the  pur- 

(533) 


§  341  PROBATE  AND  ADMINISTRATION.         [Chap.  26 

§  341.    Void  and  irregular  sales. 

Executor's  and  administrator's  sales  which  are  sub- 
ject to  collateral  attack  are  those  which  are  void  in 
their  inception  and  those  which  are  voidable.  The 
purchaser  at  a  void  sale  takes  no  title.  Such  sale  fol- 
lowed by  possession  operates  to  disseise  the  heir  or 
devisee,  and  if  continued  for  the  statutory  period 
ripens  into  a  title  by  adverse  possession.10  A  voidable 
sale  conveys  a  title  which  may  be  terminated  at  the 
suit  of  the  lawful  owner  of  the  fee.11 

Void  sales  of  this  class  consist  of  sales  of  homesteads 
worth  under  two  thousand  dollars,12  sales  to  parties 
who  are  incompetent  purchasers  under  the  statutes,13 
and  sales  in  which  the  court  entirely  failed  to  acquire 
jurisdiction  of  the  proceeding.14  Voidable  sales  are 
those  in  which  the  defects  and  irregularities  in  the 
proceedings  were  not  such  as  to  entirely  deprive  the 
court  of  power  to  act,  as  where  the  court  did  comply 

chaser  took  possession.  An  action  to  quiet  title  was  brought  by  the 
widow  and  heirs  more  than  ten  years  after  the  youngest  child  became  of 
age.  It  was  held  that  the  sale  was  void  at  its  inception,  that  the  holder 
of  the  fee  could  have  maintained  an  action  during  the  continuance  of 
the  life  estate,  but  that  the  action  had  become  barred  as  to  all  the 
parties  by  the  statute. 

10  Mitchell  v.  Campbell,  19  Or.  198,  24  Pac.  455. 

11  Veeder  v.  McKinley-Lanning  L.  &  T.  Co.,  61  Neb.  892,  86  N.  W. 
982. 

12  Tindall  v.  Peterson,  71  Neb.  160,  99  N.  W.  659;  Bixby  v.  Jewell, 
72  Neb.  755,  101  N.  W.  1026;  Holmes  v.  Mason,  80  Neb.  448,  114  N.  W. 
606;  Hobson  v.  Huxtable,  79  Neb.  334,  112  N.  W.  658. 

is  Rev.  Stats.,  c.  17,  §  199,  [1463] ;  Cole  v.  Boyd,  68  Neb.  146,  93 
N.  W.  1003. 

14  Mitchell  v.  Campbell,  19  Or.  198,  24  Pac.  455;  Smith  v.  Whiting, 
55  Or.  393,  106  Pac.  790. 

(534) 


Chap.  26]  RECOVERY   OF    LANDS    SOLD.  §  341 

with  the  statute  but  the  parties  failed  to  take  the  steps 
necessary  to  show  that  it  had  done  so.15 

In  the  case  of  any  action  relating  to  real  estate  sold 
by  an  executor  or  administrator  in  which  an  heir  or 
person  claiming  under  him  shall  contest  the  validity 
of  the  sale,  it  shall  not  be  avoided  on  account  of 
any  irregularity  in  the  proceedings,  provided  it  shall 
appear: 

First.  That  the  executor  or  administrator  was 
licensed  to  make  the  sale  by  the  district  court  having 
competent  jurisdiction; 

Second.  That  he  gave  a  bond  which  was  approved 
by  the  judge  of  the  district  court,  in  case  a  bond  was 
required  upon  granting  a  license; 

Third.  That  he  took  the  oath  prescribed  by  the 
statute; 

Fourth.  That  he  gave  notice  of  the  time  and  place 
of  sale  as  by  law  prescribed; 

Fifth.  That  the  premises  were  sold  accordingly  and 
the  sale  confirmed  by  the  court,  and  that  they  are  held 
by  one  who  purchased  them  in  good  faith.16 

Plaintiff's  recovery  is  limited  to  the  share  or  interest 
in  the  land  which  passed  to  him  as  an  heir  or  devisee.17 

Under  the  Oregon  practice,  when  land  has  been  sold 
by  an  executor  or  administrator  under  license  from 
the  court  of  probate  jurisdiction  for  the  payment  of 
debts,  and  the  sale  was  made  in  good  faith,  the  money 
devoted  to  that  purpose,  and  the  sale  confirmed  or 

15  Veeder  v.  McKinley-Lanning  L.  &  T.  Co.,  61  Neb.  892,  86  N.  W. 
982. 

16  Rev.  Stats.,  c.  17,  §  223,  [1487]. 

i?  Holmes  v.  Mason,  80  Neb.  448,  114  N.  W.  606;  Hobson  v.  Hux- 
table,  79  Neb.  334,  112  N.  W.  658;  Lyons  v.  Carr,  77  Neb.  883,  110 
N.  W.  705. 

(535) 


§  342  PKOBATE  AND  ADMINISTRATION.         [Chap.  26 

acquiesced  in  by  the  court,  and  the  period  of  five  years 
has  elapsed  since  the  sale  and  confirmation,  such  sales 
are  by  law  considered  as  confirmed  and  approved,  not- 
withstanding any  informalities  or  irregularities  in  the 
proceedings  prior  to  the  sale,  and  are  sufficient  to  sus- 
tain a  deed  to  the  purchaser  conveying  all  the  interest 
decedent  had  in  such  real  estate,  and  in  case  no  deed 
has  been  given,  it  entitles  such  purchaser  to  such  deed, 
and  if  through  mistake  or  omission  in  said  deed,  or 
defect  in  its  execution,  it  shall  be  inoperative,  it  is 
made  sufficient  to  convey  the  title  to  the  property  de- 
scribed therein,  and  may  be  made  the  basis  of  an  action 
to  quiet  title  in  the  purchaser.18 

The  above  cited  provisions  of  the  statutes  do  not 
apply  to  deeds  which  are  absolutely  void,  because  the 
county  court  or  judge  was  entirely  without  jurisdic- 
tion to  make  them.  They  apply  exclusively  to  irregu- 
lar sales  curing  defects  and  informalities  and  not  an 
entire  want  of  power  to  act.19 

§  342.    Attacking  the  license. 

The  issue  of  a  license  to  sell  real  estate  to  a  party 
as  executor  or  administrator  who  never  actually  was, 
or  had  any  authority  to  act  as,  such  executor  or  ad- 
ministrator does  not  give  the  party  receiving  it  any 
rights  as  against  the  heirs  or  devisees.  The  sale  is 
clearly  subject  to  collateral  attack.20 

A  valid  license  can  only  issue  to  a  person  duly  ap- 
pointed executor  or  administrator, — one  to  whom  let- 
is  L.  O.  L.,  §§  1256,  1258. 

i»  Mitchell  v.  Campbell,  19  Or.  198,  24  Pac.  455;  McCullough  v.  Este, 
29  Or.  349,  25  Pac.  724;  Fuller  v.  Hager,  47  Or.  242,  83  Pac.  782; 
Browne  v.  Coleman,  62  Or.  461,  125  Pac.  279. 

20  Prior  v.  Downey,  50  Cal.  388;  Coon  v.  Cook,  6  Ind.  268;  Burrell 
v.  Chicago  M.  &  St.  P.  By.  Co.,  43  Mina.  363,  45  N.  W.  849;  Griggs' 
Appeal,  101  Pa.  412. 

(536) 


Chap.  26]  BECOVEBY   OF   LANDS   SOLD.  §  342 

ters  have  lawfully  issued  from  a  court  having  juris- 
diction. The  weight  of  authority  is  that  if  the  court 
of  probate  did  not  acquire  jurisdiction  to  grant  the 
letters,  the  district  court  has  no  authority  to  hear  and 
determine  his  petition  for  the  sale  of  his  decedent's 
realty,  and  that  a  sale  under  such  circumstances  is 
subject  to  collateral  attack.21 

The  general  rule  regulating  collateral  attack  on  the 
appointment  of  an  executor,  administrator  or  guardian 
is  that,  where  the  jurisdiction  depends  upon  some  col- 
lateral fact,  which  can  be  decided  without  deciding 
the  case  on  the  merits,  then  the  jurisdiction  can  be 
questioned  collaterally  and  disproved,  even  though  the 
jurisdictional  facts  be  averred  of  record,  and  were 
actually  found  from  evidence,  by  the  court  rendering 
the  judgment  or  decree,  to  exist.22 

Where  the  question  involved  is  one  which  goes  to 
the  very  gist  of  the  suit,  so  that  it  cannot  be  decided 
without  going  into  the  merits  of  the  original  action  or 
proceeding  itself,  then  the  order  is  collaterally  con- 
clusive, because  the  question  cannot  be  tried  without 
retrying  the  case  on  its  merits,  which  is  not  permissible 
in  a  collateral  proceeding.23 

21  Washington   v.   McCaughan,   34   Miss.   304;    Haug  v.   Primeau,   98 
Mich.  91,  57  N.  W.  25;   Templeton  v.  Falls  Land  &  Cattle  Co.,  77  Tex. 
55,  13  S.  W.  964;  James  v.  Meyer,  41  La.  Ann.  1100,  7  South.  618;  Hyde 
v.  Redding,  74  Cal.  493,  16  Pac.  380. 

22  Holyoke  v.  Haskins,  5  Pick.  (Mass.)  20;  Jochumsen  v.  Suffolk  Sav. 
Bank,  3  Allen    (Mass.),  87;   Wanzer  v.  Rowland,  10  Wis.  8;   Sears  v. 
Terry,  26  Conn.  273;  Salladay  v.  Bainhill,  29  Iowa,  555;   Burns  v.  Van 
Loan,  29  La.  Ann.  560. 

23  Staples  v.  Fairchild,  3  N.  Y.  41;   Angell  v.  Bobbins,  4  E.  I.  493; 
Brown  v.  Foster,  6  B.  I.  564. 

(537) 


§  342  PEOBATE  AND  ADMINISTRATION.          [Cliap.  26 

In  the  appointment  of  a  personal  representative, 
either  executor,  administrator  or  guardian,  the  court 
which  issued  the  letters  is  presumed  to  have  acted 
upon  sufficient  evidence,  and  therefore,  where  it  has 
acted  upon  a  petition  which  sets  up  the  necessary  juris- 
dictional  facts,  and  it  appears  that  notice  has  been 
given  to  all  parties  in  interest  in  the  manner  prescribed 
by  law,  and  letters  issued,  the  proceedings  cannot  be 
collaterally  avoided  by  evidence  that  the  necessary 
facts  were  not  established.24  The  appointment  of  the 
wrong  person — one  not  entitled  to  letters — cannot  be 
questioned  collaterally.25 

Irregularities  in  the  appointment  of  an  administra- 
tor de  bonis  non  are  not  grounds  of  collateral  attack 
upon  sales  made  by  him.  The  weight  of  authority  is 
that,  when  the  court  has  once  acquired  jurisdiction 
over  the  estate,  the  removal  or  discharge  of  one  ad- 
ministrator, and  the  appointment  of  another,  upon 
grounds  not  recognized  by  law,  or  in  a  manner  not 
authorized  by  the  statutes,  are  simply  errors  touching 
the  administration  of  the  estate,  and  do  not  in  any  way 
affect  his  sales  of  realty  by  order  of  the  court.26 

24  Andrews  v.  Avory,  14  Gratt.  (Va.)  236;  Sutton  v.  Button's  Estate, 
13  Vt.  71;  Abbott  v.  Coburn,  28  Vt.  663;  Seward  v.  Didier,  16  Neb.  58, 
20  N.  W.  12;  Moore  v.  Philbrick,  32  Me.  102. 

25  Pick  v.  Strong,  26  Minn.  303,  3  N.  W.  697;   Eamp  v.  McDaniel, 
12  Or.  108,  6  Pac.  456;  Brubaker  v.  Jones,  23  Kan.  411. 

26  Boody  v.  Emerson,  17  N.  H.  577;  Culver  v.  Hardenbergh,  37  Minn. 
225,  33  N.  W.  792;  Duffin  v.  Abbott,  48  111.  17.     Contra,  Dooley  v.  Bell, 
87  Ga.  74,  13  S.  E.  284;  Kamerer  v.  Morlock,  125  Mieh.  320,  84  N.  W. 
319. 

(538) 


Chap.  26]  RECOVERY  OF  LANDS  SOLD.         §§343,344 

§  343.    Attacking  the  license — The  petition. 

The  records  in  the  proceeding  must  show  that  a 
good  petition  was  filed  by  the  executor  or  adminis- 
trator in  the  court  which  had  jurisdiction  of  such  pro- 
ceeding.27 Recitals  in  the  order  of  confirmation  that 
such  petition  was  duly  filed  when  neither  the  records 
of  the  proceeding  nor  the  files  show  that  such  was  the 
case  make  the  sale  subject  to  collateral  attack.28 

If  the  record  shows  a  petition  containing  sufficient 
allegations  to  give  jurisdiction  filed  in  the  proper  court 
and  that  it  has  been  acted  upon  as  sufficient  by  such 
court,  in  the  absence  of  fraud  or  collusion,29  defects 
and  irregularities  in  the  petition  itself  cannot  be  in- 
quired into  collaterally,30  but  defects  in  the  petition 
in  giving  the  names  and  residences  of  the  parties  inter- 
ested in  the  estate,  and  a  consequent  defective  and 
insufficient  service  upon  them,  made  the  sale  void.31 

A  failure  to  verify  the  petition  does  not  affect  the 
jurisdiction  of  the  court,  and  is  therefore  an  insuffi- 
cient ground  of  attack.32 

§  344.    Attacking  the  license — Order  to  show  cause  or 
citation. 

While  there  is  some  authority  to  the  effect  that  an 
executor's  or  administrator's  sale  cannot  be  attacked 

27  Schroder  v.  Wilcox,  39  Neb.  136,  57  N.  W.   1031;   Veeder  v.  Mc- 
Kinley-Lanning  &  L.  T.  Co.,  61  Neb.  892,  86  N.  W.  982. 

28  Ball  v.  Collins  (Tex.),  5  S.  W.  622. 

29  Seymour  v.  Bicketts,  21  Neb.  240,  31  N.  W.  781. 

30  Smith  v.  Barr,  83  Minn.  354,  86  N.  W.  342;   Phillips  y.  Phillips, 
23  S.  D.  231,  83  N.  W.  94. 

31  Smith  v.  Whiting,  55  Or.  393,  106  Pac.  790. 

32  Trumble  v.  Williams,  18  Neb.  144,  24  N.  W.  716;  Johnson  v.  Jones, 
2  Neb.  126. 

(539) 


§  344  PEOBATE  AND  ADMINISTRATION.         [Chap.  26 

collaterally  for  the  want  of  an  order  to  show  cause  or 
a  citation,  when  the  record  shows  a  regular  confirma- 
tion,33 the  weight  of  authority  is  all  the  other  way. 
Its  sufficiency,  where  the  court  found  that  "  proper 
notice"  was  given  to  all  persons  interested  according 
to  law,  will  not  be  impeached  on  collateral  attack,  such 
grounds  alone  being  insufficient  to  set  aside  the  sale,34 
unless  it  also  appears  from  the  records  that  the  pro- 
visions of  the  statutes  and  the  order  of  the  court  for 
the  service  of  the  .process  have  not  been  complied 
with.35  Jurisdiction  of  the  court  will  not  be  presumed, 
and  it  should  appear  from  the  records  of  the  proceed- 
ings for  the  sale  that  the  court  obtained  the  power  to 
grant  the  order  of  sale  by  a  legal  service  of  process.36 

In  the  case  of  service  by  publication,  and  the  records 
fail  to  show  that  the  order  was  published  as  directed 
by  the  court,  extrinsic  evidence  that  the  publication 
was  actually  made  will  cure  the  defect.37 

The  sale  will  be  held  invalid  at  the  suit  of  an  heir 
when  he,  while  a  minor,  or  his  guardian  for  him, 

33  Spurgin  v.  Bowers,  82  Iowa,  187,  47  N.  W.  1029;  Ryan  v.  Fergusson, 
3  Wash.  356,  28  Pac.  910;  Appeal  of  Kelsey,  47  Ark.  413,  2  S.  W.  102. 

34  Moore  v.  Neil,  39  111.  256;  Moffitt  v.  Moffitt,  69  111.  641;   Stow  v. 
Kimball,  28  111.  93. 

35  Fiske  v.  Kellogg,  3  Or.  503;  Smith  v.  Whiting,  55  Or.  393;  Chicago 
K.  &  N.  Ey.  Co.  v.  Cook,  43  Kan.  83,  22  Pac.  988;  Dickinson  v.  Dickin- 
son, 124  111.  483,  16  N.  E.  861. 

36  Knapp  v.  Wallace,  50  Or.  354,  92  Pac.  1054;  Northcutt  v.  Lemery, 
8  Or.  316;   Smith  v.  Whiting,  55   Or.   393,   106   Pac.   790,  holding  that 
where  the  order  of  sale  recites  that  due  service  was  had,  but  that  the 
only  service  on  resident  heirs  was  by  publication,  the  sale  was  subject 
to  collateral  attack. 

37  Schroeder  v.  Wilcox,  39  Neb.  136,  57  N.  W,  1031. 

(540) 


Chap.  26]  BECOVEBY   OF    LANDS   SOLD.  §  345 

waived  service  of  the  order;38  also  where  an  attorney 
entered  an  appearance  for  him  and  there  was  no  ser- 
vice or  attempted  service  of  process  on  him.39 

§  345.    Jurisdictional  irregularities. 

A  sale  made  by  a  personal  representative  under  au- 
thority of  a  license  issued  by  a  district  judge  at  cham- 
bers is  voidable  and  the  heir  or  devisee  can  recover 
the  lands,  unless  the  petition,  the  order  to  show  cause, 
the  proof  of  service  of  same,  and  the  license  are  on 
file  in  the  office  of  the  clerk  of  the  district  court  of 
the  county  from  which  his  license  issued.40  The  power 
to  make  the  sale  must  be  proved  by  the  record  which 
the  law  directs  shall  be  kept,41  so  that  although  the 
power  granted  a  district  judge  at  chambers  to  grant 
a  license  carried  with  it  the  implied  power  to  deter- 
mine the  necessity  of  the  sale,  and  the  sufficiency  of 
the  pleadings,  and  when  jurisdiction  is  once  obtained 
the  order  or  judgment  rendered  is  valid  until  set  aside 
in  direct  proceedings,42  if  the  record  of  the  proceed- 
ings for  sale  have  not  been  perpetuated  as  required 
by  the  statute  by  filing  all  such  papers  with  the  clerk 
of  the  district  court,  there  is  no  lawful  evidence  of 
such  sale  and  an  heir  can  have  it  set  aside.43 

The  statute  requires  the  license  to  give  a  description 
of  the  lands  to  be  sold,  but  on  collateral  attack  a  full, 

38  Winston  v.  McClendon,  43  Miss.  254;  Dickison  v.  Dickison,  124  HI. 
483,  16  N.  E.  861 ;  Ingersol  v.  Mangam,  84  N.  Y.  622. 
3»  Bonnell  v.  Holt,  89  111.  71. 

40  Veeder  v.  McKinley-Lanning  L.  &  T.  Co.,  61  Neb.  892,  86  N.  W. 
982. 

41  Stack  v.  Royce,  34  Xeb.  833,  52  N.  W.  675. 

42  Trumble  v.  Williams,  18  Xeb.  144,  24  N.  W.  716. 

43  Veeder  v.  McKinley-Lanning  L.  &  T.  Co.,  61  Neb.  892,  86  N.  W. 
982. 

(541) 


§§346,347       PROBATE    AND  ADMINISTRATION.          [Chap.  26 

complete  and  definite  description  is  not  necessary.  A 
description  sufficient  to  enable  a  person  to  identify  the 
land,  it  is  held,  complies  with  the  law.44 

Failure  to  appoint  a  guardian  ad  litem  of  a  minor  at 
the  hearing  on  the  petition  for  license  is  not  a  ground 
for  setting  aside  the  sale.45  The  grant  of  a  license  on 
the  date  for  hearing  fixed  by  the  district  judge,  which 
date  was  four  days  short  of  the  six  weeks  required  by 
law,  is  an  irregularity  only,  and  will  not  avoid  the  sale, 
nor  is  evidence  that  no  claims  were  ever  allowed  a 
cause  for  setting  it  aside.46 

§  346.    Failure  to  give  bond. 

The  issue  of  an  order  of  sale  to  an  executor,  admin- 
istrator or  guardian  confers  upon  him  an  additional 
duty  and  responsibility  beyond  that  contemplated  in 
his  appointment  and  his  original  bond, — that  of  using 
his  best  endeavors  to  dispose  of  the  property  to  advan- 
tage, and  of  making  a  disposition  of  the  proceeds 
according  to  law  and  the  directions  of  the  court;  and 
the  heir  or  former  ward  can  always  recover  when  he 
shows  that  no  bond  was  given  and  approved.47  Ex- 
trinsic evidence  is  admissible  to  show  that  the  bond 
was  in  fact  given  and  approved.48 

§  347.    Failure  to  take  the  oath. 

The  heir  or  former  ward  will  be  entitled  to  recover 
the  property  when  he  shows  that  the  oath  was  not 

44  Robertson  v.  Johnson,  37  Tex.  52;   Doe  d.  Clements  v.  Henderson, 
4  Ga.  148 ;  Money  v.  Turnipseed,  50  Ala.  499. 

45  McClay  v.  Foxworthy,  18  Neb.  295,  25  N.  W.  86;  I.  O.  L.,  §  1255. 

46  Haight  v.  Hayes,  3  Neb.  Unof .  587,  92  N.  W.  297. 

47  Stewart  v.  Bailey,  28  Mich.  251;   Babcock  v.  Cobb,  11  Minn.  347 
(Gil.  247);  Melcher  v.  Schluter,  5  Neb.  Unof.  445,  98  N.  W..  1082. 

48  Myers  v.  MeGavock,  39  Neb.  843,  58  N.  W.  522. 

(542) 


Chap.  26]  RECOVERY    OF    LANDS    SOLD.  §  348 

taken  before  the  sale  was  made;49  taking  it  after  the 
sale  would  not  make  the  sale  valid.50  If  the  oath  fail 
to  comply  with  the  wording  of  the  statute,  but  be  of 
substantially  the  same  effect,  the  plaintiff  will  not  be 
entitled  to  recover;51  nor  can  he  recover  where  the  oath 
is  not  marked  "Filed,"  but  appears  to  have  been  regu- 
larly taken,  and  is  in  the  files  of  the  case.52 

Parol  evidence  is  competent  to  show  that  an  oath 
which  appears  to  have  been  taken  after  the  sale  was 
actually  taken  in  proper  time.53 

§  348.    Notice  of  time  and  place  of  sale. 

The  giving  of  notice  of  the  time  and  place  of  sale 
is  one  of  the  five  things  necessary  under  the  statute 
to  make  a  sale  good  on  collateral  attack.  Where  no- 
tice is  essential,  as  it  is  in  this  state,  it  has  been  held 
that  its  failure  to  state  the  place  in  the  city  or  town 
where  the  sale  would  be  held,  merely  naming  the  town 
alone,54  or  failure  to  give  the  hour  when  it  would  be 
held,55  or  where  it  was  not  both  posted  in  three  of 
the  most  public  places  in  the  county  and  published  for 
the  required  time  before  the  sale  in  the  newspaper 
which  the  court  directed,  it  was  voidable  and  subject 
to  collateral  attack.56 

<»  Campbell  v.  Knights,  26  Me.  224;  Parker  v.  Nichols,  7  Pick. 
(Mass.)  Ill;  Howe  v.  Blomenkamp,  88  Neb.  389,  129  N.  W.  539. 

50  Ryder  v.  Flanders,  30  Mich.  336;  Thornton  v.  Mulquinne,  12  Iowa, 
549;   Blackman  v.  Baumann,  22  Wis.  611. 

51  Montour  v.  Purdy,  11  Minn.  384;  Frazier  v.  Steenrod,  7  Iowa,  339. 

52  West  Duluth  Land  Co.  v.  Kurtz,  45  Minn.  380,  47  N.  W.  1134. 

53  Norman  v.  Olney,  64  Mich.  533,  31  N.  W.  555. 
64  Hartley  v.  Croze,  38  Minn.  325,  37  N.  W.  449. 
55  Trustees  of  Schools  v.  Snell,  19  111.  156. 

66  Kempe  v.  Pintard,  32  Miss.  324. 

(543) 


§  349  PROBATE  AND  ADMINISTRATION.          [Chap.  26 

§  349.    Compliance  with  order  of  sale. 

An  executor's  or  administrator's  sale  which  is  not 
made  by  or  under  the  direction  of  such  representative 
is  void.  No  one  else  can  be  appointed  to  make  it.57 

A  slight  variation  in  the  time  of  the  day  the  sale  is 
held  from  that  stated  in  the  notice  is  an  irregularity 
only,58  and  is  cured  by  confirmation.59 

A  sale  at  another  place  than  that  given  in  the  notice, 
or  at  a  different  place  from  that  to  which  it  had  been 
adjourned,  are  voidable,  and  the  lands  may  be  recov- 
ered.60 

The  sale  must  be  at  public  auction.  A  private  sale 
vests  no  title  in  the  purchaser  as  against  the  heirs  or 
those  claiming  under  them.61 

A  failure  to  sell  in  parcels  when  so  ordered  by  the 
license  is  an  irregularity  which  is  cured  by  confirma- 
tion, and  on  that  ground  alone  no  recovery  can  be 
had.62 

Courts  apply  a  very  liberal  rule  when  a  doubt  exists 
as  to  whether  a  sale  has  been  confirmed.  If  the  pro- 
ceedings were  regular,  the  records  and  files  showing 

57  Jarvis  v.   Kusick,   12   Mo.   63;    Crouch  v.  Eveleth,  12  Mass.  503; 
Chambers  v.  Jones,  72  111.  275. 

58  Meyers  v.  Carter,  37  N.  C.  146. 
5»  Tippett  v.  Mize,  30  Tex.  365. 

60  Hall  v.  Ray,  40  Vt.  576;  Murphy  v.  Hill,  77  Ind.  139;  Paulsen  v. 
Hall,  39  Kan.  365. 

61  Hutchinson  v.  Cassidy,  46  Mo.  431;  Caines  v.  De  La  Croix,  6  Wall. 
(U.  S.)   719;   Neal  v.  Patten,  40  Ga,  363;  Van  Horn  v.  Ford,  16  Iowa, 
578.     In  the  latter  case  the  heir  was  permitted  to  recover  the  land  from 
an  innocent  purchaser  eighteen  years  after  the  sale  was  made  and  con- 
firmed. 

62  McCampbell  v.  Durst,  73  Tex.  410,  11  S.  W.  380;  Osman  v.  Trap- 
hagen,  23  Mich.  80. 

(544) 


Chap.  26]  BECOVEEY    OF    LANDS    SOLD.  §  350 

that  the  purchaser  was  entitled  to  the  order,  deed 
given,  the  land  paid  for,  possession  given,  no  question 
of  fraud  raised,  almost  anything  in  the  shape  of  an 
order  or  memorandum  is  sufficient  confirmation,63  and 
a  notation  on  the  judge's  docket,  "Sale  confirmed,  deed 
ordered,"  has  been  held  ample  evidence  of  confirma- 
tion.64 

§  350.    Purchase  by  disqualified  party. 

Another  good  cause  for  recovering  the  land  sold  is 
its  purchase  by  the  personal  representative  through  a 
third  party  and  later  deeded  to  him.  A  transfer  to 
him  of  the  property  soon  after  the  sale  is  presump- 
tively fraudulent.65  If  it  is  made  a  considerable  time 
afterward,  fraud  will  not  be  presumed,  but  must  be 
established  by  other  evidence  than  that  appearing  on 
the  face  of  the  records.66 

Instead  of  an  action  to  quiet  title  to  the  land  in  the 
heir  or  devisee,  he  may  elect  to  hold  the  purchaser  as 
a  trustee,  holding  the  legal  title  for  the  benefit  of  those 
interested.67  He  is  a  trustee  ex  maleficio,  and  the 
trust  so  far  void  in  equity  that  it  can  be  set  aside  by 

63  Moody  v.  Butler,  63  Tex.  210;  In  re  Harvey,  16  111.  127. 

64  Camden  v.  Plain,  91  Mo.  117,  4  S.  W.  86.     It  has  been  held  that 
where  all  proceedings  are  regular,  no  confirmation  is  necessary.     Learned 
v.   Mathews,  40  Miss.  210. 

65  Whipff  v.  Heder,  6  Tex.  Civ.  App.  685,  26  S.  W.  118;   Bergin  v. 
Haight,  99  CaL  52,  33  Pac.  760;  Fisher  v.  Bush,  133  Ind.  315,  32  N.  E. 
924. 

66  Stephen  v.  Beall,  22  Wall.   (U.  S.)   329;  Michoud  v.  Girod,  4  How. 
(U.  S.)   503. 

67  Siting  v.  Biggsville  Xat.  Bank,  173  111.  368,  50  JST.  E.  1095;  Stuckey 
T.  Lockhard,  87  Ark.  232,  112  S.  W.  747. 

35— Pro.  Ad.  (545) 


§  351  PROBATE  AND  ADMINISTRATION.          [Chap.  26 

the  cestui  que  trust  on  account  of  the  purchase  being 
by  or  for  the  person  selling.68 

§  351.    Fraud. 

Any  fraudulent  scheme  or  combination  between  the 
executor  or  administrator  and  an  heir,  guardian  or 
purchaser  which  causes  a  loss  to  the  estate  is  good 
cause  for  collateral  attack.  A  sale  so  made  is  void- 
able, but  cannot  be  set  aside  where  the  same  facts  were 
brought  before  the  court  on  objections  to  confirma- 
tion.69 A  sale  at  an  inadequate  price  is  always  evi- 
dence of  fraud,70  and  if  accompanied  by  other  evidence, 
is  sufficient  to  set  aside  the  sale.  In  many  cases  but 
little  other  evidence  is  necessary;  as  where  land  was 
sold  to  a  party  who  was  a  close  friend  and  confidential 
adviser  of  the  executor,71  or  the  administrator  was  the 
only  creditor  and  the  land  sold  for  just  enough  to  pay 
his  claim.72 

Willful  misrepresentation  of  the  quality  or  produc- 
tiveness of  the  land,  or  facts  showing  that  there  was  a 
combination  with  the  administrator  to  keep  parties 
from  bidding  and  that  consequently  a  smaller  price 
was  received  than  the  property  was  worth,  are  suffi- 
cient to  avoid  the  sale.73 

68  Davoue  v.  Fanning,  2  Johns.  Ch.  (N.  Y.)  252;  Glass  v.  Greathouse, 
20  Ohio,  503;  Brackenridge  v.  Holland,  2  Blackf.  (Ind.)  377;  Bergin  v. 
Haight,  99  Cal.  52,  33  Pac.  760. 

69  Gordon  v.  Gordon,  55  N.  H.  399. 

70  Webster  v.  Calden,  52  Me.  203;   Kimball  v.  Lincoln,  98  111.  578; 
Williams  v.  Johnson,  112  N/C.  424,  17  S.  E.  496. 

71  Barnawell  v.  Threadgill,  56  N.  C.  50. 
T2  Humes  v.  Cox,  1  Finn.  (Wis.)  551. 

73  McQueen  v.  McDaniel,  18  Ky.  Law  Rep.  954,  35  S.  W.  880;  Man- 
ning v.  Mulrey,  192  Mass.  547,  78  N.  E.  551;  Jones  v.  French,  92  Ind. 
138. 
(546) 


Chap.  26]  KECOVERY    OF    LANDS    SOLD.  §  352 

A  sale  will  be  set  aside  where  it  appears  from  the 
appointment  of  the  administrator  down  to  the  date  of 
the  deed  a  scheme  was  carried  out  to  get  possession  of 
valuable  property  at  a  small  price.74 

§  352.    Rights  of  purchaser  at  void  or  voidable  sale. 

A  purchaser  at  an  executor's  or  administrator's  sale 
which  is  later  set  aside  has  been  uniformly  held  to  be 
entitled  to  receive  back  the  money  which  he  has  paid 
in  and  which  has  been  paid  out  in  satisfaction  of  the 
debts  of  the  estate,75  in  satisfaction  of  encumbrances 
on  the  estate,76  and  for  taxes.77  He  is  substantially 
subrogated  to  the  rights  of  parties  who  have  charges 
against  the  land.  Any  other  rule  would  be  to  appro- 
priate one  man's  property  to  the  use  of  another.78 

He  is  also  entitled  to  payment  for  any  increase  in 
the  value  of  the  land  on  account  of  improvements  he 
has  put  on  it.79 

He  must  account  for  the  rents  and  profits  received.80 

74  Bergin  v.  Haight,  99  CaJ.  52,  33  Pac.  760,  in  which  a  party  fraudu- 
lently   procured  the    appointment  of    his    agent  as    administrator,  had 
fraudulent  claims  allowed  against  the   estate,  and  the  land  sold  for  a 
meager  price  by  his  agent,  and  sale  confirmed  and  deed  ordered  to  him. 
He  th:n  sold  to  a  third  party,  but  the  fraud  was  so  flagrant  all  through 
the  administration  that  a  purchaser  from  the  heirs  was  permitted  to  have 
the  deed  set  aside. 

75  Cole  v.  Boyd,  68  Neb.  146,  93  N.  W.  2003;   Blodgett  v.  Hitt,  29 
Wis.  169;  Baker  v.  Martin,  156  Ind.  53,  59  X.  E.  174. 

76  Holz  v.  Burling,  84  Neb.  211,   120  N.  W.  954,  in  which  the  heir 
repudiated  the  sale  on  account  of  the  land  being  a  homestead. 

77  Ball  v.  Clothier,  34  Wash.  299,  75  Pac.  1099. 

78  Valie  v.  Fleming,  19  Mo.  454;  Hudgin  v.  Hudgin's  Exr.,  27  Gratt. 
(Va.)   304;  Winslow  v.  Crowel,  32  Wis.  639. 

7»  Miller  v.  Rich,  204  111.  444,  88  N.  E.  488;   Mulford  v.  Minch,  11 
N.  J.  Eq.  16;  Hatcher  v.  Briggs,  6  Or.  31. 
80  Cole  v.  Boyd,  68  Neb.  14G,  93  N.  W.  1000. 

(547) 


CHAPTER  XXVII. 

PAYMENT  OF  DEBTS  AND  EXPENSES. 

§  353.  Time  Within  Which  Debts  are  Payable. 

354.  Time  Granted  an  Administrator  De  Bonis  Non  to  Pay  Debts. 

355.  Assets  Liable  for  the  Payment  of  Debts. 

356.  Order  of  Application  of  Personalty  to  Payment  of  Debts. 

357.  Direction  in  Will  for  Payment  of  Debts. 

358.  Debts  Charged  on  the  Real  Estate. 

359.  Assets    not    Liable    for    Debts. 

360.  Adjustment   of  Liens   on  Realty. 

361.  Liability  of  Heirs,  Legatees  and  Devisees  for  Payment  of  Debta. 

362.  Actions  Against  Heirs,  Devisees  and  Legatees. 

363.  Actions  Against  Executors  and  Administrators. 

364.  Executor  or  Administrator  not  Subject  to  Garnishment. 

365.  Classification  of  Claims  for  Payment  of  Debts. 

366.  Interest  on  Claims. 

367.  Order  for  Payment  of  Claims. 

368.  Payment,  How  Made. 

369.  Liability  of  Executor  or  Administrator  to  Creditors. 

§  353.    Time  within  which  debts  are  payable. 

The  debts  of  an  estate  should  be  paid  as  soon  after 
their  allowance  as  the  assets  will  permit.  No  claim 
should  be  paid  before  it  is  allowed,  and  any  agreement 
between  the  claimant  and  an  heir,  legatee  or  devisee 
for  the  payment  of  an  ordinary  unsecured  claim  which 
has  not  been  regularly  filed  and  approved  by  the 
county  judge  is  not  binding  on  the  estate.1 

The  time  first  fixed  for  their  payment  is  not  to  exceed 
eighteen  months.2  Extensions  may  be  granted  as  the 
circumstances  may  require,  and  not  exceeding  six 
months  at  a  time,  not  extending  the  entire  time  beyond 

1  Johnson  v.  Pulver,  1  Neb.  Unof.  290,  95  N.  W.  697. 

2  R«v.  Stats.,  c.  17,  S  127,  [1391]. 

(548) 


Chap.  27 J       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  353 

three  years,  on  application  of  the  executor  or  admin- 
istrator.3 If  the  time  first  fixed  was  less  than  a  year 
and  a  half,  extensions  up  to  that  time  may  be  granted 
by  the  court  without  notice  to  parties  interested. 
Whenever  application  is  made  for  an  extension  beyond 
one  year  and  six  months  from  e  the  date  of  letters, 
notice  is  required  to  be  given  all  parties  interested  of 
the  pendency  of  the  application,  and  of  the  time  and 
place  set  for  hearing  the  same  by  publication  for  three 
successive  weeks  in  some  newspaper  to  be  designated 
by  the  court,  and  no  order  extending  the  time  shall  be 
granted  unless  such  notice  shall  have  been  previously 
given.4 

Form  No.  159. 

APPLICATION  FOE  EXTENSION  OF  TIME  FOR  PAYMENT  OF 

DEBTS. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that  he 
is  the   duly  appointed  executor  of  said  estate;   that  heretofore,  to  wit, 

an   order  of  said  court  was  made  and  entered  fixing  the   date 

for  the  payment  of  tne  debts  and  legacies  of  the  said  deceased  at  one 

year  and  six  months  from  said  date,  which  time  will  elapse  on  the  

day  of  -  ,   19 — ,   and  that  debts  and  demands  have  been   allowed 

against  said   estate  in   the   sum   of  dollars;    that   said   estate   is 

solvent,  and  able  to  pay  all  debts  in  full;  that  he  will  be  unable  to 
collect  the  assets  of  said  estate,  owing  to  his  being  obliged  to  bring 
suits  against  G.  H.  and  E.  F.  for  the  recovery  from  them  of  demands  : 

due  said  estate,  and  which   said   suits   are  now  pending  in   the   

court  of county,  Nebraska,  and  on  account  of  his  inability  toisell; 

a  sufficient  amount  of  said  estate  for  a  sum  equivalent  to  said  debts 
and  legacies  within  the  time  fixed  by  this  court  for  the  payment  of 
said  debts  and  legacies;  that  he  has  a  reasonable  expectation  of  col- 
lecting all  the  assets  of  said  estate,  or  sufficient  thereof  to  satisfy  all 
of  said  debts,  legacies,  and  expenses  within  six  months. 

3  Rev.  Stats.,  c.  17,  §128,  [1392]. 

4  Rev.  Stats.,  c.  17,  §  129,  [1393], 

(549)  ' 


§  353  PROBATE  AND  ADMINISTRATION.          [Chap.  27 

Wherefore,  your  petitioner  prays  that  the  court  may  appoint  a  time 
and  place  for  hearing  and  deciding  upon  said  application,  and  cause 
notice  of  the  pendency  thereof  to  be  given  to  all  persons  interested,  in 
the  manner  prescribed  by  law,  and  that,  upon  said  hearing,  the  time  for 
paying  said  debts  and  legacies  and  settling  said  estate  be  extended  for 
the  period  of  six  months  from  the  day  of  ,  19 — . 

Dated  this day  of ,  19—. 

(Signed)     C.  D., 
Executor  Estate  of  A.  B. 

[Add  verification,  Form  No.  5.] 

Form  No.    160. 

NOTICE  OF    APPLICATION    TO    EXTEND  TIME  FOR    PAYING 

DEBTS. 

[Title  of  Cause  and  Court.] 
To  All  Persons  Interested  in  the  Estate  of  A.  B.,  Deceased: 

Notice  is  hereby  given  that  C.  D.,  executor  of  said  estate,  on  the 
day  of  ,  19 — ,  filed  his  application  in  said  court,  pray- 
ing that  the  time  heretofore,  by  order  of  said  court,  allowed  for  the 
payment  of  debts  and  legacies  and  settling  of  said  estate,  be  extended 
for  the  period  of months  to  the day  of  ,  19 — . 

It  is  further  ordered  that  notice  of  the  pendency  of  this  petition,  and 
of  the  time  and  place  for  the  hearing  of  the  same,  be  given  to  all  per- 
sons interested  in  said  estate  by  publication  once  each  week  for  four 
successive  weeks  in  the  ,  a  newspaper  published  in  said  county. 

Dated  this  day  of  ,  19—. 

(Signed)     J.  K., 
County  Judge. 

Form  No.  161. 

ORDER    EXTENDING  TIME   FOR    PAYMENT    OF    DEBTS  AND 

LEGACIES. 
[Title  of  Cause  and  Court.] 

This  matter  came  on  for  hearing  upon  the  application  of  C.  D.,  ex- 
ecutor of  said  estate,  praying  that  the  time  fixed  by  the  court  for  the 
payment  of  the  debts  and  legacies  of  said  estate  be  extended  for  the 

period  of  six  months,  and  to  the  day  of  ,  19 — ,  and  was 

submitted  to  the  court. 

The  court  finds  that  due  notice  of  the  pendency  of  said  petition  has 
been  given  by  publication  in.  the  manner  prescribed  by  law,  and  that 

(550) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  353 

the   circumstances   of   the    case    require   that    the    executor   be     granted 
further  time  for  the  payment  of  said  debts  and  legacies. 

It  is  therefore  ordered  that  the  time  fixed  by  the  court  for  the  pay- 
ment of  said  debts,  legacies,  and  expenses  be  extended  for  the  period 

of ,  and  to  the day  of ;  19 — . 

(Signed)     J.  K., 
County  Judge. 

Under  the  Oregon  practice,  the  county  court,  at  the 
first  term  after  the  filing  of  the  first  semi-annual  ac- 
count, ascertains  and  determines  if  the  estate  be  suffi- 
cient to  pay  the  claims  presented  and  allowed  during 
that  period,  together  with  the  funeral  charges  and 
expenses  of  administration,  and  if  he  so  finds,  an  order 
is  entered  for  that  purpose,  but  if  the  estate  is  insuffi- 
cient, he  shall  ascertain  what  per  centum  of  claims 
it  is  sufficient  to  satisfy,  and  order  and  direct  accord- 
ingly. Similar  orders  are  entered  at  the  close  of  each 
six  months'  period  thereafter.5  Claims  not  due  are 
ordered  paid  at  their  present  value.6 

Claims  filed  within  the  six  months'  period  fixed  by 
the  statute  take  precedence  over  those  presented  later, 
and  payment  of  the  later  claims  is  postponed  until 
those  presented  within  the  first  six  months  are  satis- 
fied.7 The  order  of  the  court  for  their  payment,  ex- 
cepting only  those  demands  allowed  by  the  county 
court  in  special  proceedings  on  claims,  or  which  have 
been  reduced  to  judgment  against  the  representative, 
afford  him  no  protection  as  against  objections  to  their 
allowance  on  the  final  hearing  on  his  account.8  He 
may  pay  claims  without  first  obtaining  an  order  of  the 
court,  but  incurs  an  additional  liability  should  he  pay 
them  out  of  order  or  the  court  refuse  for  any  reason  to 
approve  his  acts.9 

»  L.  O.  L.,  §  1284. 
«  L.  O.  L.,  §  1301. 

7  In  re  Murray's  Estate,  56  Or.  138,  107  Pac.  19. 

8  In  re  Chambers'  Estate,  38  Or.  134,  62  Pac.  1013. 
•  Tostel  T.  Morat,  19  Or.  183,  23  Pac.  900. 

(551) 


§§354,355       PROBATE    AND  ADMINISTRATION.          [Chap.  27 

§  354.    Time  granted  an  administrator  de  bonis  non 
to  pay  debts. 

When  an  administrator  de  bonis  non  is  appointed, 
it  is  the  duty  of  the  court  to  make  an  order  allowing  a 
time  for  disposing  of  the  estate  unadministered,  and 
paying  the  debts  and  legacies,  which  time  shall  not,  in 
the  first  instance,  exceed  one  year  for  the  time  such 
new  administrator  shall  be  appointed,  and  it  may  be 
extended  upon  like  notice  and  in  like  manner  as  in  the 
case  of  an  original  executor  or  administrator.10  The 
statute,  however,  is  not  construed  as  taking  away  the 
liability  of  an  executor  or  administrator  to  make  an 
immediate  payment  when  demanded  upon  a  decree  for 
the  distribution  of  the  assets  among  creditors,  legatees 
or  heirs  at  law.  The  new  administrator  has  the  same 
length  of  time  as  is  allowed  his  predecessor  for  closing 
up  the  estate,  the  three  years  commencing  to  run  from 
the  time  of  his  appointment.11 

§  355.    Assets  liable  for  the  payment  of  debts. 

•All  property  which  a  person  owned  at  the  time  of 
his  death,  excepting  only  that  which  he  cannot  devise 
or  bequeath,  and  that  necessary  for  the  payment  of  the 
expenses  of  administering  his  estate,  together  with 
that  which  has  been  recovered  by  the  personal  repre- 
sentative from  the  persons  to  whom  he  fraudulently 
transferred  it,12  is  liable  for  the  payment  of  his  debts.13 

10  Rev.  Stats.,  c.  17,  §  130,  [1394]. 

11  Saxon  v.  Gain,  19  Neb.  488,  26  N.  W.  385. 

12  Section  212,  supra. 

13  Norton  v.  Norton,  5  Gush.  (Mass.)  524;  Lunn  v.  Yeaton,  3  Crancb 
C.  C.  182,  Fed.  Gas.  No.  8642. 

(552) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  355 

A  testator  cannot  by  will  exempt  any  part  of  his 
property  from  such  liability  to  the  prejudice  of  his 
creditors,14  nor  direct  that  any  preference  other  than 
that  made  by  law  be  given  one  creditor  or  class  of 
creditors  over  another.15 

Personal  property  is  the  primary  fund  for  the  pay- 
ment of  the  debts  of  an  intestate.  In  the  case  of  a 
testate  estate,  if  the  will  contains  no  direction  for  their 
payment,  or  clause  setting  out  any  part  of  the  estate 
for  that  purpose,  they  will  be  paid  from  the  personalty. 
In  order  to  make  them  a  charge  upon  the  realty,  it  must 
clearly  appear  from  the  will  that  it  was  the  intention 
of  the  testator  that  his  defrts  be  paid  from  his  real 
estate.16 

If  the  will  makes  provisions  for  the  debts,  or  desig- 
nates the  particular  portion  of  the  estate  to  be  appro- 
priated therefor,  then  they  are  to  be  paid  accordingly 
out  of  the  estate  so  appropriated,  as  far  as  the  same 
shall  be  sufficient.17  If  such  provisions  are  not  suffi- 
cient, such  part  of  the  estate,  real  or  personal,  as  shall 
not  have  been  disposed  of  by  the  will,  if  any,  shall  be 
applied,  according  to  the  provisions  of  the  law,  for 
that  purpose.18  The  estate,  real  or  personal,  given  by 
will  to  any  devisee  or  legatee  shall  be  held  liable  for 
the  payment  of  the  debts  and  expenses  of  adminis- 

H  Magruder  v.  Carroll,  4  Md.  335;  Henderson's  Succession,  113  La. 
101,  36  South.  904. 

is  Peering  v.  Kerfoot,  89  Va.  491,  16  S.  E.  671. 

16  Leigh  v.  Savidge's  Exrs.,  14  N.  J.  Eq.  124;   Bragaw  v.  Bolles,  51 
N.  J.   Eq.  84,  25   Atl.   949;    Adams  v.   Brackett,   5   Met.    (Mass.)    280; 
Arnold  v.  Dean,  61  Tex.  249;  Cadmus  v.  Combes,  37  N.  J.  Eq.  264. 

17  R«v.  Stats.,  c.  17,  §  52,  [1316]. 

18  Kev.  Stats.,  c.  17,  §  53,  [1317J. 

(553) 


§§  356,  357      PROBATE    AND   ADMINISTRATION.          [Chap.  27 

tration  in  proportion  to  the  amount  of  the  several 
legacies  and  devises,  except  the  specific  devises  and 
legacies,  and  the  persons  to  whom  they  shall  be  made, 
shall  be  exempt  if  it  appear  to  the  court  necessary  in 
order  to  carry  out  the  intention  of  the  testator,  and 
there  be  other  sufficient  estate.19 

§  356.    Order  of  application  of  personalty  to  payment 
of  debts. 

The  order  in  which  personal  property  may  be  taken 
for  debts  depends  very  largely  on  the  terms  of  the 
will.  Where  there  is  no  property  designated  for  the 
debts  and  no  direction  for  their  payment,  the  rule  is 
the  same  as  in  case  of  devises,  and  general  legacies 
should  be  first  exhausted  before  specific  legacies  are 
taken,20  and  the  residuary  personalty  will  be  applied 
before  general  legacies.21 

The  effect  of  the  words  so  frequently  found  in  wills, 
"after  the  payment  of  all  my  just  debts,"  is  to  post- 
pone the  vesting  of  all  legacies  and  devises  until  they 
are  paid,  thus  making  the  debt,  unless  the  will  contain 
other  directions,  a  charge  upon  the  entire  estate,  the 
same  as  if  debts  were  not  mentioned.22 

§  357.    Directions  in  will  for  payment  of  debts. 

A  clause  in  a  will  directing  the  payment  of  the  debts 
from  certain  property  makes  such  property  a  primary 

i»  Eev.  Stats.,  c.  17,  §  54,  [1318]. 

20  In  re  De  Bernal  Estate  (Cal.),  131  Pac.  375;  In  re  Martin's  Estate, 
25  R.  I.  1,  54  Atl.  589. 

21  Stevens  v.  Underbill,  67  N.  H.  68,  36  Atl.  370;   Brown  v.  Brown, 
41  N.  Y.  507;  L.  O.  L.,  §  1251;  Howe  v.  Kern,  62  Or.  496,  125  Pac.  837. 

22  Shallcross  v.  Finden,  3  Ves.  738. 

(554) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  358 

fund,  and  to  that  extent  releases  the  rest  of  the  estate 
from  liability.23 

A  direction  to  the  executor  to  pay  all  the  debts 
makes  them  a  primary  charge  on  that  part  of  the  estate 
which  comes  into  his  possession  pending  administra- 
tion, to  wit,  the  personalty  and  the  income  from  the 
realty,24  and  if  he  is  a  devisee  or  legatee,  they  would 
be  a  charge  on  his  devise  or  legacy.25 

The  word  "debts,"  as  used  in  wills,  will  generally 
be  held  to  include  any  claim  which  can  be  allowed 
against  the  estate,26  and  also  debts  secured  by  mort- 
gage.27 

§  358.    Debts  charged  on  real  estate. 

The  common-law  rule  is  that  in  order  to  charge  the 
debts  on  the  real  estate  and  exonerate  the  personalty 
there  must  be  an  express  direction  to  that  effect  in  the 
will.28  It  is  not  necessary  that  this  be  done  in  so  many 
words.  It  is  sufficient  if  that  intent  be  gathered  from 
t"he  instrument  as  a  whole,  or  its  conditions  are  such 
that  they  cannot  be  complied  with  were  the  debts  to 
be  paid  from  the  personalty,29  and  in  order  to  entirely 
shift  the  primary  liability  from  the  personal  to  the 

23  Smith  v.  Wyckoff,  11  Paige   (N.  Y.),  49;   Newport  v.  Newport,  5 
Wash.  113,  31  Pac.  428. 

24  Cook   v.   Dawson,   29   Beav.   126. 

25  Reynolds  v.  Reynolds'  Exrs.,   16   N.  Y.  257;   Shallcross  v.  Finden, 
3  Ves.  738;  Williams  v.  Chitty,  3  Ves.  345. 

26  Rogers  v.  Rogers,  3  Wend.  (N.  Y.)   503,  20  Am.  Dec.  716. 

27  Turner  v.  Laird,   68   Conn.  198,  35  Atl.   1124;   French  v.  Vraden- 
burgh,  105  Pa.  10. 

28  Tait  v.  Northwick,  4  Ves.  823. 

29  Wright's  Appeal,   12  Pa.  256;   Tracy  v.  Tracy,  15  Barb.    (N.  Y.) 
503;  Seaver  v.  Lewis,  14  Mass.  83;  Bugbee  Y.  Sargeant,  27  Me.  38. 

(555) 


§  359  PROBATE   AND  ADMINISTRATION.          [Chap.  27 

real  estate,  it  must  appear  that  such  was  the  clear  in- 
tention of  the  testator.30 

If  the  personal  estate  is  all  specifically  bequeathed, 
and  the  real  estate  ordered  sold  for  the  payment  of 
debts,  the  personalty  will  be  released.31 

The  tendency  of  the  more  recent  decisions  is  to  get 
away  from  the  common-law  rule  and  to  hold  that  a 
general  intention,  instead  of  a  specific,  express  or  im- 
plied direction,  is  sufficient  to  charge  the  debts  on  the 
real  estate.32 

If  the  will  directs  that  the  real  estate  be  sold, 
and  the  proceeds,  together  with  the  personal  estate, 
charged  with  the  payment  of  the  debts,  the  two  species 
of  property  would  be  liable  in  proportion  to  their  re- 
spective values.33  If  realty  and  personalty  are  both 
charged  with  payment  of  the  debts,  the  personalty  still 
remains  the  primary  fund.34 

§  359.    Assets  not  liable  for  debts. 

Damages  recovered  under  the  statute  for  causing  the 
death  of  the  decedent  by  the  wrongful  act,  neglect  or 
default  of  another  are  not  liable  for  his  debts,  but  are 
for  the  exclusive  benefit  of  his  next  of  kin.35 

30  Crone's  Appeal,  107  Pa.  571;    Calder  v.  Curry,  17  B.  I.  610,  25 
Atl.  103. 

31  Hoes  v.  Van  Hoesen,  1  Barb.  Ch.  (N.  Y.)  400. 

32  Kiswetter  v.  Kress,  24  Ky.  Law  Rep.  1239,  70  S.  W.  1065;  Jackson 
v.  Bevins,  74  Conn.  96,  49  Atl.  890;  McKinley  v.  Coe;  66  N.  J.  Eq.  70, 
57  Atl.  1030. 

33  Turner  v.  Turner,  57  Miss.  775. 

34  2  Redfield  on  Wills,  210. 

35  Eev.  Stats.,  c.  17,  §§  164,  165,   [1428],   [1429].     It  has  been  held 
that  the  personal  representative  who  recovers  such  damages  is  entitled 
to  retain  therefrom  his  legal  commission,  including  anything  above  the 

(556) 


Chap.  27]       PAYMENT  OP  DEBTS  AND  EXPENSES.  §  360 

In  Oregon  such  assets  are  equally  liable  for  debts 
with  other  property.36 

Advancements,  though  required  to  be  deducted  from 
the  share  accruing  to  the  heir,  are  not  considered,  in 
the  strict  sense  of  the  term,  as  assets  of  the  estate, — 
that  is,  as  far  as  the  payment  of  the  debts  is  concerned, 
an  executor  or  administrator  cannot  recover  them  from 
the  heir,  even  though  the  estate  be  insolvent.37 

§  360.    Adjustment  of  liens  upon  realty. 

It  is  an  old  established  rule  of  law  that  an  admin- 
istrator has  the  right  to  satisfy  a  mortgage  debt  from 
the  personal  assets  of  the  estate,  thus  relieving  the 
realty  from  the  encumbrance;38  and  it  has  been  held 
that  the  heir  may  compel  the  application  of  the  per- 
sonalty to  the  discharge  of  a  mortgage,  except  he  dis- 
pose of  his  entire  interest  in  the  estate  or  in  the  realty.8* 
There  is  little  to  be  gained  from  such  a  course.  The 
heir  might  just  as  well  receive  his  share  in  cash,  and 
apply  it  to  the  satisfaction  of  the  mortgage,  as  to  com- 
pel the  personal  representative  to  pay  it. 

In  Oregon  the  redemption  of  property  from  the  lien 
of  mortgages  is  largely  within  the  direction  of  the 
county  court.  If  the  deceased  left  any  property,  either 
real  or  personal,  under  mortgage,  and  did  not  devise 
or  provide  for  the  redemption  of  the  same  by  will,  the 

regular  percentage  which  the  court  may  adjudge  to  be  due  him  for  special 
services  and  a  reasonable  fee  for  his  attorney.  Baker  v.  Raleigh  & 
G.  R.  Co.,  91  N.  C.  308. 

30  Section  263,  supra. 

M  2  Bl.  Com.  513;  Wilson  v.  Soper,  13  B.  Mon.  (Ky.)  411;  L.  0.  L., 
§  7854i 

38  Sutherland  v.  Harrison,  86  111.  363. 

30  Haven  v.  Foster,  9  Pick.  (Mass.)  112,  19  Am.  Dec.  353. 

(557) 


§  360  PROBATE  AND  ADMINISTRATION.          [Chap.  27 

county  court  or  judge,  on  the  application  of  an  heir, 
creditor  or  other  person  interested  in  the  estate,  may 
order  the  executor  or  administrator  to  redeem  such 
property  out  of  the  proceeds  of  the  other  personal 
property,  if  it  appears  that  such  redemption  would  be 
for  the  interest  of  the  estate,  and  not  prejudicial  to 
creditors.40  If  redemption  is  not  ordered,  the  court 
shall  enter  an  order  for  the  sale  of  the  property  in  the 
same  manner  as  sales  of  other  lands  for  the  payment 
of  debts.  The  conveyance  covers  the  equity  of  the 
estate  only  in  the  property.41 

After  the  return  to  the  order  of  sale  and  ten  days 
before  making  an  order  for  the  application  of  the  pro- 
ceeds, the  mortgagee  or  other  person  to  whom  the  debt 
secured  by  such  mortgage  is  payable  shall  be  cited  to 
appear  and  show  the  amount  of  his  debt;  and  may  file 
objections  to  the  report  of  the  expenses  of  the  proceed- 
ing and  sale.  The  proceeds  are  applied  in  payment  of 
the  expenses  of  the  sale,  but  not  including  general 
administration  expenses  or  compensation  of  the  repre- 
sentative; secondly,  to  the  satisfaction  of  the  debt,  and 
the  residue  is  applied  in  due  course  of  administration.42 
If  the  mortgage  is  not  due,  the  party  entitled  to  it  shall 
receive  its  present  value.43 

The  right  of  the  party  holding  the  mortgage  or  other 
lien  to  a  foreclosure  or  to  enforcement  of  a  judgment 
or  decree  is  not  affected  by  the  statute.44 

In  regard  to  testate  estates,  the  rule  is  necessarily 
different,  the  will  often  containing  provisions  setting 
apart  certain  property  for  the  payment  of  debts,  or  a 
clearly  expressed  intention  that  the  devisee  should 
take  subject  to  the  encumbrance.  If  it  clearly  appears 

40  L.  O.  L.,  §  1271;  Howe  v.  Kern,  62  Or.  496,  125  Pac.  833. 

41  L.  O.  L.,  §  1272;  Howe  v.  Kern,  supra. 

42  L.  O.  L.,  §  1273;  Shephard  v.  Saltzman,  34  Or.  43,  54  Pac.  882. 

43  L.  O.  L.,  §  1274. 

44  Verdier  v.  Bigne,  16  Or.  210,  19  Pac.  64;  L.  0.  L.,  §  1274. 

(558) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  360 

from  the  terms  of  the  will  that  it  was  the  intention  of 
the  testator  that  the  devisee  should  take  subject  to  the 
encumbrance,  the  personal  estate  cannot  be  used  for 
that  purpose;  otherwise,  the  same  rule  applies  as  in 
the  case  of  intestate  estates;45  and  the  same  would  be 
true  of  the  payment  of  vendors '  liens  upon  the  realty.48 

Taxes  upon  the  realty  accruing  previous  to  the  death 
of  the  decedent  should  be  paid  from  the  personalty. 
Those  accruing  after  his  death  are  a  charge  upon  the 
land,  and  the  heir  or  devisee  takes  subject  to  them,47 
and  the  statute  does  not  require  them  to  be  paid  by  the 
personal  representative,48  except  when  he  takes  posses- 
sion of  the  same.49 

Though  at  common  law  the  devisee  of  encumbered 
real  estate  or  legatee  of  encumbered  personalty  was 
entitled  to  have  the  same  paid,50  they  were  not  payable 
from  specific  bequests  or  from  the  proceeds  of  other 
devised  lands.51  If  the  mortgage  was  on  the  land  at 
the  time  it  came  into  testator's  possession,  the  devisee 
took  the  property  subject  to  the  lien.52 

45  Keene  v.  Munn,  16  X.  J.  Eq.  398;  Lennig's  Estate,  52  Pa.  135. 

46  Henderson  v.  Whitinger,   56   Ind.   131. 

4"  Henderson  v.  Whitinger,  56  Ind.  131;  Lamport  v.  Beeman,  34  Barb. 
(X.   Y.)    239. 

48  Rev.  Stats.,  c.  17,  §102,   [1366], 

49  Patrick  v.  Patrick,  72  Neb.  454,  100  X.  W.  939. 

50  Richardson  v.  Hall,   124  Mass.   228;    Plimpton  v.  Fuller,  11   Allen 
(Mass.),  139;   Thompson  v.  Thompson,  4  Ohio  St.  333;   Hoff's  Appeal, 
24  Pa.  203;  Johnson  v.  Goss,  128  Mass.  433. 

51  Frazier  v.  Littleton,  100  Va.  9,  40  S.  E.  108;  2  Jarman  on  Wills, 
626,  634. 

52  Thompson   v.   Thompson,   4   Ohio   St.   333;    Andrews  v.   Bishop,   5 
Allen   (Mass.),  403. 

(559) 


§  361  PROBATE  AND  ADMINISTRATION.         [Chap.  27 

§  361.    Liability  of  heirs,  legatees  and  devisees  for  the 
payment  of  debts. 

Whenever,  pending  the  settlement  of  the  estate,  any 
of  the  personal  assets  thereof  shall  have  been  trans- 
ferred by  the  personal  representative  to  the  heirs  or 
legatees,  and  it  shall  subsequently  appear  that  the  per- 
sonalty still  remaining  in  the  hands  of  the  executor  or 
administrator  is  insufficient  to  pay  the  debts  in  full, 
it  is  the  duty  of  such  legatee  or  heir  to  return  to  the 
personal  representative  the  assets  transferred  to  him, 
or  enough  thereof  to  pay  the  debts.  Such  liability  fre- 
quently arises  in  the  case  of  contingent  claims.  When 
a  contingent  claim  shall  be  presented  within  one  year 
from  the  time  it  shall  accrue,  and  be  established,  and 
the  executor  or  administrator  shall  not  have  sufficient 
to  pay  the  whole  of  said  claim,  the  creditor  shall  have 
the  right  to  recover  the  whole  or  a  part  of  his  claim 
as  the  executor  or  administrator  has  not  assets  to  pay, 
against  the  heirs,  devisees  or  legatees  who. shall  have 
received  sufficient  real  or  personal  property  from  the 
estate.53  When  the  heirs,  devisees  or  legatees  shall 
have  received  real  or  personal  estate,  and  shall  be  liable 
for  any  debts  by  reason  of  the  executor  or  adminis- 
trator not  having  in  his  possession  enough  property  to 
pay  the  same,  it  having  been  transferred  to  such  heirs, 
devisees  or  legatees,  they  shall  be  liable  in  proportion 
to  the  estate  they  may  have  respectively  received ;  and 
the  creditor  may  have  any  other  action  or  suit  at  law 
or  in  equity,  and  shall  have  the  right  to  recover  his 
claim  against  a  part  or  all  of  such  devisees,  heirs  or 

53  Rev.  Stats.,  c.  17,  §§  144,  145,  [1467],  [1468]. 
(560) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  361 

legatees  to  the  amount  of  the  estate  they  may  have  re- 
spectively received.54 

This  action  is  not  an  original  one,  but  a  special  pro- 
ceeding for  the  enforcement  and  collection  of  a  claim 
previously  allowed,  and  it  has  been  held  to  have  been 
properly  brought  in  the  district  court.  If  it  is  realty 
that  is  sought  to  be  recovered,  the  proper  action  is  by 
petition  to  subject  the  lands  to  the  lien  of  the  debt,  and 
it  will  be  sustained,  even  though  the  heirs  or  devisees 
have  sold  their  interest  to  third  parties.55 

It  is  also  a  special  proceeding  under  the  Oregon  prac- 
tice. The  sureties  may  be  made  parties  to  the  same. 
Notice  of  the  application  must  be  given  ten  days  before 
the  term  at  which  it  is  made.  The  decree  directs  the 
payment  of  the  amount  within  a  definite  time,  and  if 
not  paid,  it  may  be  enforced  by  execution  against  the 
sureties  the  same  as  a  decree  of  the  district  court.56 

On  account  of  personalty  being  the  primary  fund, 
legacies  should  be  first  recovered,57  and  devises  cannot 
be  resorted  to  except  where  the  legacies  are  insuffi- 
cient.58 The  value  of  the  gift  is  fixed  as  of  the  date 
of  the  death  of  the  decedent.59 

A  party  who  receives  possession  of  a  bequest  or  de- 
vise which  is  charged  with  debts  before  the  debts  are 
paid  does  not  become  liable  for  the  entire  amount  of 
the  debts,  but  only  for  an  amount  equal  to  the  value  of 
the  property  which  he  has  received  as  a  beneficiary.60 

64  Rev.  Stats.,  c.  17,  §  148,  [1412]  ;  L.  O.  L.,  §§  1308,  1309. 

55  Horst  v.  McCormiek  Harvester  Co.,  30  Neb.  558,  46  N.  W.  717. 

56  L.  O.  L..  §  1309. 

57  Hunt  v.  Grant,  87  Minn.  189,  91  N.  W.  485. 

58  Hcssig  v.  Hessig,  131  Ky.  514,  115  S.  W.  748. 

59  Rogers  v.  Rogers,  3  Wend.  (X.  Y.)  503. 

CO  O  thcimer  v.  Single,  73  X.  J.  Eq.  539,  68  Atl.  231;  Frost  v.  Win- 
gate,  73  X.  H.  535,  63  Atl.  19. 

36— Pro.  Ad.  (561) 


§  362  PROBATE  AND   ADMINISTRATION.          [Chap.  27 

A  devise  so  charged,  or  other  assets  which  were  re- 
ceived by  the  beneficiary  before  the  debts  were  paid, 
may  be  followed  into  the  hands  of  third  parties,  pur- 
chasers from  the  beneficiaries,  and  subjected  to  their 
ehare  of  the  unpaid  debts,61  and  at  common  law  any 
creditor  could  follow  assets  which  had  been  obtained 
by  third  parties  by  collusion  with  the  personal  repre- 
sentative.62 

§  362.    Action  against  heirs,  devisees  or  legatees. 

The  action  against  the  heirs,  devisees  or  legatees 
must  be  brought  within  one  year  from  the  date  upon 
which  the  claim  is  allowed  and  established.  The  stat- 
ute commences  to  run  from  the  date  when  the  claim 
was  allowed  in  the  county  court.  If  an  appeal  Is 
taken,  it  interrupts  its  running,  and  it  commences  to 
run  again  when  the  judgment,  affirmed  in  the  district 
or  supreme  court,  is  certified  back  to  the  county  court, 
— the  date  on  which  the  records  of  the  county  court 
would  show  that  the  claim  was  finally  allowed  and 
established.63 

All  parties  who  have  received  assets  of  the  estate 
should  be  made  defendants.  The  original  petition 
may  be  filed  against  a  part  of  them,  and  the  others 
brought  in  by  proper  process,  and  the  court  will  allow 
such  amendments  as  may  be  necessary  to  make  them 
defendants  on  terms.64 

61  Thomas  v.  Williams,  80  Kan.  632,  102  Pac.  772;  Ristine  v.  Kurtz, 
97  Iowa,  339,  66  N.  W.  185;   Elwood  v.  Deifenclorf,  5  Barb.   (N.  Y.) 
398. 

62  Worthy  v.  Johnson,  8  Ga.  236;  Shannon's  Heirs  v.  Dillon,  8  B.  Mon. 
<Ky.)    389. 

63  Horst  v.  McCormick  Harvester  Co.,  30  Neb.  558,  46  N.  W.  717. 

64  Rev.  Stats.,  c.  17,  §§  148,  150,  [1412],  [1414]. 

(562) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  362 

If  more  than  one  person  shall  be  liable,  and  the  cred- 
itors shall  bring  a  suit  against  all  br  a  part  of  the  per- 
sons so  liable,  and  the  persons  liable  shall  dispute  the 
debts  of  the  amount  claimed,  the  court  may  order  an 
issue  to  be  formed  and  the  amount  ascertained  by  the 
verdict  of  a  jury,  and  the  court  shall  ascertain  and 
determine  how  much  each  is  liable  to  pay  and  award 
execution  therefor.65 

An  heir  or  devisee  or  legatee  who  has  paid  more 
than  his  share  may  enforce  contribution  from  the 
others,  including  the  estate  of  one  who  died  leaving  his 
share  unpaid,66  and  legatees  or  devisees  who  take  prop- 
erty exclusively  charged  with  debts  may  enforce  con- 
tribution between  themselves  only.67 

Form  No.  162. 

PETITION    TO    RECOVER    MONEY  FROM    HEIRS    WHICH  WAS 
PAID  THEM  BY  ADMINISTRATOR. 

[Title  of   Cause  and   Court.] 

The  plaintiff  complains  of  the  defendant  and  for  cause  of  action 
alleges  that  on  the  day  of  ,  19 — ,  he  filed  a  certain  de- 
mand in  the  county  court  of  said  county  against  the  estate  of  A.  B., 
deceased,  as  a  contingent  claim  for  the  sum  of  one  thousand  dollars; 

that   on   the day  of  ,   19 — ,  an  order  of  said  court   was 

made  and  entered  finding  that  said  claim  was  a  proper  contingent  demand 
against  said  estate;  that  later  said  claim  became  absolute,  and  on  the 

day  of  ,  19 — ,  was  duly  allowed  and  established  by  said 

county  court  in  favor  of  said  plaintiff  and  against  the  estate  of  said 
A.  B.,  deceased,  in  the  sum  'of  one  thousand  dollars,  and  that  an  order 
of  said  county  court  was  thereupon  made  and  entered  directing  L.  M., 
administrator  of  said  estate,  to  pay  the  same;  that  no  part  of  said 
amount  so  due  plaintiff  as  aforesaid  has  been  paid,  and  there  is  due 
pla:ntiff  thereon  the  sum  of  one  thousand  dollars,  with  interest  from 
,  19-. 

65  Rev.  Stats.,  c.  17,  §  151,  [1415]. 

66  Rev.  Stats.,  c.  17,  §§  152,  153,  [1416],  [1417]. 
«7  Rev.  Stats.,  c.  17,  §  149,  [1413]. 

(563) 


§  363  PROBATE  AND  ADMINISTRATION.          [Chap.  27 

Second.  That,  as  appears  by  the  annual  report  of  L.  M.,  adminis- 
trator of  the  said  estate,  of  said  A.  B.,  deceased,  he  has  collected,  of 
the  assets  of  said  estate,  the  sum  of  five  thousand  dollars ;  has  paid  as 
allowances  for  the  support  of  the  widow  and  minor  children  of  said 
A.  B.  the  sum  of,  to  wit,  two  thousand  dollars;  that  he  has  paid  debts 
allowed  against  said  estate  by  the  commissioners  thereon,  amounting  to 
the  sum  of  one  thousand  dollars. 

Third.     That  said  L.  M.,  administrator,  on,  to  wit,  the day  of 

,  19 — ,  paid  to  defendant  E.  F.  the  sum  of  one  thousand  dol- 
lars, and  to  defendant  G.  H.  the  sum  of  five  hundred  dollars,  and  that, 
since  the  filing  of  his  annual  report,  said  L.  M.  has  paid  other  claims 
and  demands  against  said  estate,  which  plaintiff  verily  believes  amount 
to  the  sum  of  five  hundred  dollars,  and  that  he  now  has  in  his  possession 
no  assets  of  said  estate  which  can  be  applied  upon  the  payment  of  the 
debt  so  allowed  by  said  commissioners  against  the  estate  of  said  A.  B. 

Fourth.  That,  as  appears  by  the  inventory  filed  by  said  L.  M.,  ad- 
ministrator, and  by  said  rfnnual  report  of  said  L.  M.,  all  the  assets 
of  slid  estate  of  said  A.  B.  have  been  by  said  L.  M.  reduced  to  pos- 
session and  paid  out  and  expended  by  him  as  in  paragraphs  two  and 
three  alleged,  and  that  there  are  no  assets  of  said  estate  in  the  posses- 
sion of  any  other  heirs  or  distributees  of  said  estate  except  the  said 
sums  of  one  thousand  dollars  and  five  hundred  dollars,  so  as  afore- 
said in  the  possession  of  said  defendants  E.  F.  and  G.  H.,  and  that  the 
said  sums  so  as  aforesaid  paid  by  said  L.  M.,  administrator,  to  said 
defendants  E.  F.  and  G.  H.,  are  of  the  proceeds  of  certain  notes  and 
mortgages  belonging  to  said  estate,  and  collected  by  said  L.  M.,  admin- 
istrator. 

Your  petitioner  therefore  prays  judgment  against  the  defendant 
E.  F.  for  the  sum  of  six  hundred  sixty-six  and  66/100  dollars,  with 
interest  thereon  from  the  day  of  ,  19 — ,  and  for  judg- 
ment against  the  defendant  G.  H.  for  the  sum  of  three  hundred  thirty- 
three  and  33/100  dollars,  with  interest  from  ,  19 — ,  and  costs 

of  suit. 

(Signed)     C.  D., 
By  A.  B.  H.,  His  Attorney. 

[Add  verification,  Form  No.  5.] 

§  363.    Actions  against  executors  or  administrators. 

The  law  recognizes  the  right  of  a  creditor  to  bring 
an  action  against  an  executor  or  administrator  to  reach 
(564) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  363 

the  assets  in  his  hands  for  a  contingent  debt  after  the 
same  has  become  absolute  and  duly  allowed  within  one 
year  after  it  shall  become  due.  If  the  executor  or  ad- 
ministrator has  not  retained  sufficient  assets,  he  may 
set  up  as  a  defense  that  he  has  fully  administered  the 
estate  which  has  come  into  his  possession  or  knowl- 
edge.68 And  if  it  shall  appear  on  the  trial  that  he  had 
fully  administered  the  estate  at  the  time  the  claim  was 
presented,  and  has  no  assets  of  the  estate  which  can 
be  lawfully  appropriated  for  that  purpose,  he  shall  be 
discharged,  and  shall  have  judgment  for  his  costs;  but 
if  it  shall  be  found  that  he  had  assets  sufficient  to  pay 
a  part  of  such  claim,  judgment  shall  be  rendered 
against  him  for  such  sum  only  as  shall  be  equal  to  the 
amount  of  the  assets  in  his  hands.69 

If  the  giving  of  the  notice  of  the  examination  and 
allowance  of  claims  against  the  estate  before  the  judge 
or  commissioners  shall  in  any  case  be  omitted  for  the 
period  of  one  year  after  the  granting  of  letters  testa- 
mentary or  of  administration,  any  person  having  a  con- 
tingent or  other  lawful  claim  against  a  deceased  person 
may  at  once  commence  an  action  thereon,  and  prose- 
cute the  same  against  the  executor,  administrator,  heir, 
devisee  or  legatee,  as  the  case  may  be,  who  shall  have 
received  real  or  personal  property  from  the  estate. 
Such  creditor  is  required  to  commence  the  action 
against  such  heir,  legatee,  devisee,  executor  or  admin- 
istrator within  five  years  after  the  issuing  of  letters 
testamentary  or  of  administration.70 

68  Rev.  Stats.,  c.  17,  §§  145,  146,  [1409],  [1410]. 
«»  Rev.  Stats.,  c.  17,  §  147,  [1411]. 
70  Rev.  Stats.,  c.  17,  §  154,  [1418], 

(565) 


§  363  PROBATE  AND   ADMINISTRATION.          [Chap.  27 

No  other  action  at  law,  except  for  the  possession  of 
real  or  personal  property  can  be  brought  against  an 
executor  or  administrator. 

Form  No.  163. 

PETITION  AGAINST  EXECUTOR  OR  ADMINISTRATOR  TO  RE- 
COVER CONTINGENT  CLAIM. 

In  the  District  Court  of County,  Nebraska. 

C.  D, 

Plaintiff, 
vs. 
E.  F., 

Defendant. 

The   plaintiff   complains   of   the   defendant,   and    alleges   that    on   the 

day  of ,  19 — ,  said  E.  F.  was  duly  appointed  administrator 

of  the  estate  of  A.  B.,  deceased,  by  letters  of  administration  issued  out 
of  and  under  the  seal  of  the  county  court  of  said  county,  and  now  is 
acting  as  such  administrator. 

Second.  That  on  the  day  of ,  19 — ,  said  plaintiff  pre- 
sented to  the  Honorable  J.  K.,  county  judge  of  said  county,  his  certain 

contingent  claim  against  said  estate  in  the  sum  of  dollars ;  that 

on  the  day  of  ,  19 — ,  said  county  court,  by  an  order  duly 

made  and  entered,  allowed  said  claim  of  this  plaintiff  against  said  es- 
tate in  the  sum  of dollars  ($ )  as  a  contingent  claim  against 

the  estate  of  said  A.  B.,  and  that  the  said  Honorable  J.  K.,  county 
judge,  also  made  an  order  on  the  said day  of ,  19 — ,  direct- 
ing said  defendant,  E.  F.,  to  retain  in  his  hands,  as  such  administrator, 

the  sum  of  dollars  of  the  assets  of  said  estate  for  the  purpose 

of  paying  said  contingent  claim  of  plaintiff  so  allowed  as  a  contingent 
claim  by  said  county  judge,  should  said  claim  become  an  actual  and 
fixed  demand  against  said  estate. 

Third.     That  said  defendant  has  in  his  possession,  as  plaintiff  verily 

believes,   the   sum   of  dollars    ($ ),   which   said  amount   is 

suffic:ent  to  pay  said  demand  of  said  plaintiff,  and  that  on  the  — 
day  of  ,   19 — ,  plaintiff  demanded  of  defendant,  said  adminis- 
trator, the   sum   of  — dollars,  being  the   amount   allowed   plaintiff 

by  the  county  judge  as  aforesaid,  and  that  payment  thereof  was  refused. 

Fourth.  That  no  part  of  the  claim  or  demand  of  plaintiff  against  the 
estate  of  said  A.  B.  has  been  paid. 

(566) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  364 

Your  petitioner  therefore  prays  for  judgment  against  the  said  E.  F. 

for  the  sum  of  dollars,  provided  it  shall  appear  on  the  trial  of 

this  action  that  said  E.  F.,  administrator,  has  retained  in  his  hands  suffi- 
cient assets  of  said  estate  to  pay  the  same;  and  if  it  shall  appear  that 
said  E.  F.,  administrator,  has  in  his  hands  only  sufficient  assets  of  said 
estate  to  pay  a  part  of  said  claim  of  plaintiff,  then  that  judgment  be 
rendered  against  him  for  a  sum  equal  to  the  amount  of  the  assets  in  his 
hands,  and  for  the  costs  of  this  action. 

(Signed)     C.  D., 
By  A.  B.  H.,  His  Attorney. 

[Add  verification,  Form  No.  5.] 

§  364.    Executor  or  administrator  not  subject  to  gar- 
nishment. 

A  writ  of  garnishment  cannot  issue  to  an  executor 
or  administrator  pending  administration  of  the  estate. 
He  would  be  unable  to  disclose  the  amount  due  an  heir 
or  legatee,  and  if  he  could  do  so,  his  admissions  would 
not  bind  the  estate.71 

After  the  decree  of  distribution  or  order  for  payment 
of  legacies  is  entered,  the  interest  of  the  heir  or  legatee 
is  subject  to  garnishment.72 

A  creditor  of  an  heir  or  legatee  who  has  reduced 
his  demand  to  judgment,  and  exhausted  all  legal  reme- 
dies in  an  attempt  to  collect  the  same,  may  maintain 
an  action  in  the  nature  of  a  creditor's  bill,  to  subject 
the  interest  of  his  debtor  in  the  estate  to  the  payment 
of  his  judgment,73  and  an  injunction  may  issue  restrain- 

71  White  v.  Ledyard,  48  Mich.  264,  12  X.  W.  216;  Boyer  v.  Hawkins, 
86  Iowa,  50,  52  X.  W.  659;  Thurston  v.  Wilmer,  94  Md.  455,  51  Atl.  96. 

72  Palmer  v.  Xoyes,  45  X.  H.  174;   Brown  v.  Wiley,  107  Ga.  85,  32 
S.  E.  905;  Hudson  v.  Wilber,  114  Mich.  116,  72  X.  W.  162. 

73  Anderson  v.   Bradford,  5  J.  J.  Marsh.    (Ky.)    69;    Peay  v.  Morri- 
son's Exrs.,  10  Gratt.  (Va.)  149;  Farrar  v.  Haselden,  9  Rich.  Eq.  (S.  C.) 
831. 

(567) 


§  365  PROBATE  AND  ADMINISTRATION.          [Chap.  27 

ing  the  personal  representative  from  paying  out  any 
part  of  such  share  pending  the  suit.74 

§  365.    Classification  of  claims  for  payment. 

When  an  estate  is  solvent,  no  question  arises  over 
preferred  claims,  but  if  the  assets  are  insufficient  to 
pay  them  in  full,  they  are  paid  in  the  following  order 
after  first  deducting  the  expenses  of  administration: 

First.     The  necessary  funeral  expenses; 

Second.     The  expenses  of  the  last  sickness ; 

Third.  Debts  having  a  preference  by  the  laws  of  the 
United  States; 

Fourth.     Debts  due  other  creditors.75 

The  first  two  classes  are  charges  imposed  on  the  es- 
tate by  the  law  of  the  land,  payable  by  the  executor 
without  being  formally  allowed  by  the  county  court.76 
What  is  the  last  illness  is  principally  a  question  of  fact. 
It  may  have  lasted  for  months  or  perhaps  years.  It 
does  not  include  all  the  charges  for  medical  attend- 
ance, nurses,  etc.,  during  the  existence  of  the  disease 
which  proved  fatal,  unless  the  illness  resulting  there- 
from was  continuous,  requiring  such  services  con- 
stantly, but  the  expenses  incurred  during  the  final 
illness  resulting  from  such  disease,77  and  all  claims 
growing  out  of  such  illness  rank  together.78 

Debts  having  a  preference  by  the  laws  of  the  United 
States  are  those  due  the  federal  government,  which 

74  Earle  v.  Grove,  92  Mich.  285,  52  N.  W.  615. 

75  Rev.  Stats.,  c.  17,  §§  131,  132,  [1395],  [1396]. 

76  Section   284,   supra.     For  what   are   proper   funeral   expenses,   see 
S  284,  supra. 

77  Huse  v.  Brown,  8  Me.  167;  Percival  v.  McVey,  Dud.  (S.  C.)  337. 

78  Bennett  v.  Ives,  30  Conn.  229. 

(568) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  365 

yields  to  no  other  creditor,  and  whose  claims  take  pre- 
cedence over  all  other  demands.79  It  includes  taxes  of 
all  kinds  due  the  federal  government,  liability  for 
money  or  other  property  for  which  the  deceased  was 
personally  responsible  while  living,  and  liability  as  a 
surety  upon  a  bond.80 

It  has  been  held  that  a  surety  on  a  bond  to  the 
United  States  who  has  been  compelled  to  pay  the  same 
is  subrogated  to  the  rights  of  the  government,  and  en- 
titled to  precedence  over  other  creditors.81 

The  fourth  class  includes  all  other  demands,  either 
actual  or  contingent,  which  are  a  legal  charge  against 
the  estate,  and  which  have  been  allowed  as  such  by 
the  court  or  commissioners.  It  is  immaterial  whether 
the  debt  was  one  contracted  in  this  state,  or  in  some 
other  state,  where  it  might  have  a  priority  over  other 
claims  which  rank  with  it  here.  It  comes  in  the  last 
class,  and  is  paid  according  to  the  laws  of  Nebraska.82 
Personal  taxes  due  the  county  or  municipality  come 
under  this  head.  They  have  no  priority  over  other 
demands,  and  rank  the  same  as  ordinary  debts  against 
the  estate.83 

In  Oregon,  claims  allowed  within  the  first  six  months 
after  the  date  of  notice  of  the  issue  of  letters,  and  those 
presented,  allowed  or  established  within  each  succeed- 

79  1  Stats,  at  Large,  515;  United  States  v.  Eggleston,  4  Saw.  199,  Fed. 
Gas.  No.  15,207. 

80  United   States  v.  Duncan,  4  McLean,   607,   Fed.   Cas.  No.  15,003; 
United  States  v.  Eggleston,  4  Saw.  199,  Fed.  Cas.  No.  15,207. 

81  Reed  v.  Emory,  1  Serg.  &  E.  (Pa.)  339;  Akin  v.  Dunlap,  16  Johns. 
(N.  Y.)    77. 

82  Union  Bank  of  Georgetown  v.  Smith,  4  'Cranch  C.  C.  21,  Fed.  Cas. 
No.  14,362. 

83  Hedman  v.  Anderson,  8  Neb.  185;  Millett  v.  Early,  16  Neb.  266. 

(569) 


§  366  PEOBATE  AND  ADMINISTRATION.          [Chap.  27 

ing  period  of  six  months,  are  paid  in  the  following 
order:  1.  Funeral  charges;  2.  Taxes  of  whatever  nature 
due  the  United  States;  3.  Expenses  of  last  sickness; 

4.  Taxes  of    whatever  nature  due  the  state,  or  any 
county  or  other  public  corporation  therein;  5.  Debts 
preferred  by  the  laws  of  the  United  States;  6.  Debts 
which  at  the  date  of  the  death  of  the  deceased  were 
a  lien  on  his  property  or  any  right  or  interest  therein, 
such  preference  extends  only  to  the  proceeds  of  the 
property  on  which  the  lien  exists,  and  as  such  takes 
preference  over  any  other  class  except  taxes;  7.  Debts 
due  employees  of    the    decedent    and    earned  within 
ninety  days  immediately  preceding  his  death;  8.  All 
other  claims  against  the  estate.84 

Classification  of  claims  is  based  entirely  on  their 
subject  matter.  A  judgment  against  an  executor  or 
administrator  in  his  representative  capacity  stands  the 
same  as  the  demand  on  which  it  was  based,  and  gives 
its  holder  no  preference  over  those  holding  like 
claims.85 

§  366.    Interest  on  claims. 

There  is  no  statute  in  this  state  fixing  the  rate  of 
interest  on  claims  that  have  been  allowed  against  an 
estate.  The  usual  practice  is  to  allow  interest  at  seven 
per  cent  from  the  date  of  their  allowance,  which  is  the 
rule  in  other  states  where  claims  are  allowed  by  a 
court  or  commissioners.86  Claims  which  by  their  terms 
bear  interest  until  paid,  like  promissory  notes,  would 
continue  to  bear  interest  after  allowance  at  the  same 
rate.87 

84  L.  O.  L.,  §§  1295,  1296. 

85  In  re  Fox,  92  N.  Y.  93;   Harrington  T.  Tolbert,  110  Ga.  428,  35 

5.  E.  687. 

86  Mowry  v.  Peck,  2  E.  I.  260;  Glenn's  Estate,  74  Ga.  567.  16  Pac. 
396. 

87  Beber's  Estate,  142  Pa.  208,  22  Atl.  380. 

(570) 


Chap.  27]       PAYMENT  OF   DEBTS  AND  EXPENSES.  §  367 

If  the  estate  is  insolvent,  it  would  be  more  equitable 
to  disallow  all  interest  for  the  benefit  of  creditors  of  a 
lower  class.88 

§  367.    Order  for  payment  of  claims. 

The  allowance  of  a  claim  against  an  estate  is  a  direc- 
tion for  its  payment,  and  when  the  estate  is  solvent 
they  should  be  paid  either  in  full  or  by  installments, 
as  the  circumstances  of  the  estate  permit,  enough  being 
retained  by  the  executor  or  administrator  to  satisfy 
contingent  claims  should  they  become  absolute.89 

If  the  assets  are  insufficient  to  pay  all  the  debts, 
creditors  of  a  lower  class  cannot  be  paid  until  those 
of  the  classes  above  it  have  been  provided  for,  and 
if  there  is  not  enough  to  pay  such  class,  each  receives 
a  dividend  in  proportion  to  the  amount  of  his  demand.90 
In  such  case  the  court  in  its  order  allowing  the  claim 
should  state  to  which  class  it  belongs,  and  an  appeal 
lies  to  the  district  court  from  the  classification  as  well 
as  the  allowance.91 

The  order  classifying  claims  may  be  amended  or 
•changed  by  the  county  court  in  the  same  manner  as 
other  final  orders.92  It  has  been  held  that  in  case  of 
a  conflict  between  creditors  over  priorities,  the  execu- 
tor or  administrator  may  have  all  parties  brought  into 
court  and  the  question  determined.93 

88  See  Bowers  v.  Hammond,  139  Mass.  360,  31  N.  E.  729;  Camp  v. 
Crant,  21  Conn.  41. 

89  Rev.  Stats.,  c,  17,  §§  134,  137,  143,   [1398],   [1401],   [1407]. 
»0  Rev.  Stats.,  c.  17,  §  133,  [1397]. 

»l  Relson  v.  Russell's  Admrs.,  15  Mo.  356. 
92  Jillett  v.  Union  Xat.  Bank,  56  Mo.  304. 
£3  Jeter  v.  Barnard,  42  Ga.  43. 

(571) 


§  367  PEOBATE  AND   ADMINISTRATION.          [Chap.  27 

If  the  executor  or  administrator  pays  to  a  creditor 
of  one  class  money  which  ought  to  be  paid  to  a  cred- 
itor of  a  superior  class,  he  must  account  to  the  cred- 
itors of  the  superior  class  for  the  property  thus  dis- 
tributed, at  least  to  the  amount  of  the  outstanding 
claims  of  that  class.94  Payment  to  a  creditor  of  a 
larger  dividend  than  he  is  entitled  to  gives  the  other 
.creditors  of  the  same  class  no  claim  on  the  executor  or 
administrator  for  a  proportionate  amount.  The  over- 
payment is  all  that  can  be  apportioned.95 

Form  No.  164. 
DECREE  FOR  PAYMENT  OF  DEBTS. 

[Follow  Form  No.  141  to  *,  then,  if  assets  are  insufficient  to  pay 
debts  in  full,  say:]  And  it  further  appearing  that  C.  D.,  administrator 
as  aforesaid,  has  in  his  hands,  belonging  to  said  estate,  the  sum  of 

dollars,  which  sum  is  insufficient  to  pay  the  debts  in  full:   It  is 

therefore  ordered  and  adjudged  that  said  administrator  first  reserve  from 
said  assets  a  sufficient  sum  with  which  to  pay  the  costs  of  administra- 
tion, together  with  the  allowance  for  support  of  the  widow  and  minor 
children  of  said  A.  B.,  still  remaining  unpaid,  and  that  he  then  pay 
the  claims  designated  as  "funeral  expenses,"  next  the  claims  designated 
as  "expenses  of  last  illness,"  next  those  which  have  a  preference  by 
virtue  of  the  laws  of  the  United  States,  and  that  he  distribute  the  bal- 
ance of  said  assets  among  the  other  creditors  in  proportion  to  the 
amounts  of  their  several  demands,  retaining,  however,  in  his  possession, 
a  sufficient  amount  to  pay  the  same  pro  rata  share  of  the  contingent  claim 

of dollars  allowed  one  X.  Y.,  should  claim  become  absolute.     No 

interest  to  be  allowed  creditors  upon  any  of  their  claims. 

Dated  this day  of  ,  19—. 

(Signed)     J.  K., 
County  Judge. 

In  Oregon  the  order  of  the  county  court  for  the  pay- 
ment of  claims  imposes  a  personal  liability  to  each 
creditor  included  therein.96 

»4  Miller  v.  Janey's  Exr.,  15  Mo.  265;  Schoenich  v.  Reed,  8  Mo.  App. 
356;  Pinneo  v.  Goodspeed,  120  111.  524,  12  N.  E.  196. 

95  Pinneo  v.  Goodspeed,  supra. 

96  L.  O.  L.,  §  1302. 
(572) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  368 

Form  No.  165. 

DECREE  FOR  FURTHER  DISTRIBUTION  TO  CREDITORS. 
[Title  of  Cause  and  Court.] 

It  appearing  to  the  court  from  the  report  of  C.  D.,  administrator  of 
said  estate,  on  file  herein,  that  he  has  in  his  possession  assets  of  said 
estate  to  the  amount  of  dollars  applicable  to  the  further  pay- 
ment of  debts  previously  allowed  against  said  estate,  it  is  therefore 
ordered  and  decreed  that  the  said  administrator  distribute  said  sum  to 
said  creditors  in  proportion  to  the  amount  of  their  demands  allowed  said 
estate  [pay  said  creditors  the  balance  due  each  and  all  of  them  from 
said  estate],  together  with  interest  thereon  from  the  date  of  said 
allowance. 

Dated  this  day  of  ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

If  an  appeal  shall  have  been  taken  from  the  decision 
of  the  court  or  commission,  and  shall  remain  unde- 
termined, the  court  may  suspend  the  decree  for  the 
payment  of  the  debts,  or  may  order  a  distribution 
among  the  creditors  whose  claims  have  been  allowed, 
leaving  in  the  hands  of  the  executor  or  administrator 
sufficient  assets  to  pay  the  claim  which  may  have  been 
disputed  or  appealed,97  and  the  same  would,  of  course, 
be  true  of  a  claim  taken  to  the  district  court  upon  error. 
When  the  disputed  claim  shall  have  been  finally  set- 
tled, the  court  shall  order  the  same  to  be  paid  out  of 
the  assets  retained,  to  the  same  extent  and  in  the  same 
proportion  as  the  other  creditors.98 

§  368.    Payment,  how  made. 

The  executor  or  administrator  should  pay  the  cred- 
itors in  cash  and  take  their  receipts  to  be  filed  as 
vouchers  in  the  county  court.  The  county  judge  has 

87  Rev.   Stats.,  c.  17,  §  135,   [1399]. 
»s  Rev.  Siats.,  c.  17,  §  136,  [1400], 

(573) 


§  369  PROBATE  AND  ADMINISTRATION.          [Chap.  27 

no  power  to  receive  and  disburse  it."  Such  order 
would  protect  the  personal  representative,  but  the 
judge  who  made  it  ought  to  be  impeached  on  general 
principles. 

The  administrator  may,  with  the  consent  of  the 
creditor,  assign  to  him  promissory  notes  belonging 
to  the  estate,100  or  the  creditor  may  buy  property  of  the 
estate  and  apply  his  claim  on  the  purchase  price.101 

§  369.    Liability  of  executor  or  administrator  to  credi- 
tors. 

Whenever  a  decree  has  been  made  for  the  distribu- 
tion of  the  assets  among  the  creditors,  the  executor  or 
administrator  of  the  estate,  after  the  time  of  payment 
shall  arrive,  shall  be  personally  liable  to  the  creditors 
for  their  debts,  or  the  dividend  thereon,  as  for  his  own 
debts,  or  he  shall  be  liable  on  his  bond  which  may  be 
put  in  suit  by  any  creditor  whose  demand  is  unpaid.102 

Two  remedies  are  thus  provided;  the  first  by  the 
issue  of  an  execution,  as  on  a  judgment,  out  of  the 
county  court,  or  out  of  the  district  court  if  the  matter 
has  been  taken  there  on  appeal  and  affirmed.  If  the 
county  court-  execution  has  been  returned  unsatisfied, 
a  transcript  may  be  filed  in  the  district  court  and  exe- 
cution issued  thereon.  The  second  is  by  action  on  the 
bond.103  When  the  time  fixed  by  the  court  for  the 
payment  of  debts  has  expired,  whether  the  estate  be 
solvent  or  not,  the  court  may,  on  the  application  of  the 

99  Wheeler  v.  Barker,  51  Neb.  846,  71  N.  .W.  750. 

l«o  Marshall  County  v.  Hanna,  57  Iowa,  372,  10  N.  W.  745. 

101  Neely  v.  Blair,  157  Pa.  417,  27  Atl.  777. 

102  Rev.  Stats.,  c.  17,  §  138,   [1402]. 

103  Lydick  v.  Chancy,  64  Neb.  288,  89  N.  W.  801. 

(574) 


Chap.  27]       PAYMENT  OF  DEBTS  AND  EXPENSES.  §  369 

executor  or  administrator,  by  an  order  for  that  pur- 
pose, cause  notice  to  be  given  to  the  creditors  of  the 
time  appointed  or  limited  for  the  payment  of  such 
debts,  which  notice  shall  be  given  by  publishing  the 
same  at  least  three  weeks  successively  in  some  paper 
to  be  designated  by  the  court,  or  in  such  manner  as  the 
court  shall  direct.104  If,  after  this  notice  shall  have 
been  given,  any  creditor  shall  neglect  to  demand  from 
the  executor  or  administrator  his  debt,  or  the  dividend 
thereof,  within  two  years  from  thfe  time  so  limited  for 
the  payment  of  debts,  or  if  the  notice  shall  have  been 
given  after  such  time,  within  two  years  from  the  date 
of  the  last  publication,  the  claim  of  such  creditor  shall 
be  forever  barred.105 

Form  No.  166. 

ORDER  TO  CREDITORS  TO  DEMAND  THEIR  CLAIMS. 
[Title  of  Cause  and  Court.] 

Application  having  been  made  to  this  court  by  C.  D.,  administrator 
of  said  estate,  for  an  order  requiring  all  creditors  of  said  estate  to  de- 
mand the  amounts  allowed  them  by  the  commission  appointed  to  adjust 
and  allow  claims  against  said  estate,  and  it  appearing  that  the  time 
fixed  for  the  payment  of  the  debts  of  said  estate  has  expired,  notice  is 
hereby  given  all  creditors  of  said  estate  that  the  time  fixed  by  the  court 
for  the  payment  of  the  debts  allowed  against  said  estate  expired  on  the 

day  of  ,  19 — ,  and  that  all  creditors  whose  claims  against 

said  estate  have  been   allowed  are  required  to  appear  and  demand   the 

same  on   or   before   ,    19 — ,   and   that   in   default   thereof  their 

claims  will  be  forever  barred. 

It  is  further  ordered  that  service  of  this  order  be  had  by  publication 

of  a  copy  of  the  same  for  three  successive  weeks  in  the  ,  a  legal 

newspaper  of  said  county. 

Dated  this day  of  ,  19—. 

(Signed)     J.  K., 
County  Judge. 

104  Rev.  Stats.,  c.  1,5  139,  [1403]. 

105  Rev.  Stats.,  c.  17,  §  140,  [1404]. 

(575) 


CHAPTER  XXVIII. 

PAYMENT  OF  LEGACIES. 

§  370.  Personalty  the  Primary  Fund  for  Payment  of  Legacies. 

371.  Charges  on  Real  Estate  for  Payment  of  Legacies. 

372.  Sales  of  Real  Estate  for  Payment  of  Legacies. 

373.  Payment  of  Legacies  to  Debtors  and  Creditors. 

374.  Vesting  of  Legacies. 

375.  Laps«d  Legacies. 

376.  Lapsed  and  Void  Legacies. 

377.  Abatement  of  Legacies. 

378.  Ademption  of  Legacies. 

§  370.    Personalty  the  primary  fund  for  legacies. 

The  personal  estate  is  the  primary  fund  for  the  pay- 
ment of  legacies  unless  the  will  directs  otherwise,1  and 
if  it  does  not  appear  from  the  will  that  the  real  estate 
is  to  be  charged  with  their  payment,  they  will  abate, 
either  in  whole  or  in  part,  if  the  personalty  is  insuffi- 
cient.2 

The  acceptance  of  a  devise  or  bequest  conditioned 
upon  the  payment  by  the  devisee  or  legatee  of  a  legacy 
to  a  third  party  makes  such  legacy  a  charge  on  such 
legacy  or  devise,  and  the  devisee  or  legatee  personally 
responsible  therefor,3  thus  partially  relieving  the  per- 
sonalty. Personalty  may  be  made  the  secondary  fund, 
but  a  specific  direction  to  that  effect  is  practically 
necessary  to  do  it.4 

1  Lupton  v.  Lupton,  2  Johns.  Ch.  (N.  Y.)  613;  Gallagher's  Appeal,  43 
Pa.  123;  Gridley  v.  Andrews,  8  Conn.  1;  Simonsen  v.  Hutchinson,  231  HI. 
508,  83  N.  E.  183. 

2  Hoyt  v.  Hoyt,  85  N.  Y.  142 ;  Crawford  v.  McCarthy,  159  N.  Y.  514, 
54  N.  E.  277;  Hibler  v.  Hibler,  104  Mich.  274,  62  N.  W.  361. 

3  Burch  v.  Burch,  52  Ind.  136;  Dodge  v.  Manning,  1  N.  Y.  298;  Fuller 
T.  McEwen,  17  Ohio  St.  288. 

4  Gordon  v.  James,  86  Miss.  719,  39  South.  18. 

(576) 


Chap.  28]  PAYMENT  OF  LEGACIES.  §  371 

§  371.    Charges  on  real  estate  for  payment  of  legacies. 

What  will  or  will  not  be  construed  by  a  court  as 
charging  legacies  on  real  estate,  depending  as  it  does 
on  the  intention  of  the  testator  to  be  determined  from 
the  entire  will,  is  a  difficult  matter  to  decide.  There 
are  a  number  of  rules  that  have  been  generally  recog- 
nized by  the  courts  on  the  question. 

A  legacy  payable  from  the  estate,  or  directly  charge- 
able on  the  estate,  charges  both  real  and  personal  prop- 
erty, the  former  being  primarily  liable.5  A  direction 
contained  in  a  will  which  cannot  be  complied  with  un- 
less the  legacy  is  paid  from  the  real  estate  will  make 
it  a  charge  thereon.6 

Where  legacies  are  given  generally  and  the  residue 
of  the  estate  is  bequeathed  and  devised  in  a  mass,  the 
legacies  are  a  charge  on  the  residuary  realty,  if  the 
personalty  is  insufficient,7  and  the  same  is  true  if  the 
will  disposes  of  the  residuary  estate  ' '  after  payment  of 
legacies"  or  "after  the  above  directions  have  been 
complied  with,"  8  or  devises  land  "after"  the  payment 
of  a  legacy  or  "with  the  understanding"  that  it  shall 
be  paid.9 

5  Hartson  v.  Elden,  50  X.  J.  Eq.  522,  26  Atl.  561 ;  Carter  v.  Gray,  58 
N.  J.  "Eq.  411,  43  Atl.  711;  Cameron  v.  Boyd,  4  Dana  (Ky.),  549. 

6  Fauber  v.  Keira,  85  Neb.  217,  122  X.  W.  849. 

7  Wilson  (Herdlitchka)  v.  Foss,  2  Neb.  Unof.  428,  89  N.  W.  300;  Gal- 
lagher's Appeal,  48  Pa.  123;  Wilcox  v.  Wilcox,  13  Allen   (Mass.),  252; 
Robinson  v.  Mclvor,  63  N.  C.  649;  Moore  v.  Beckwith,  14  Ohio  St.  135; 
Corwine  v.  Corwine,  24  N.  J.  Eq.  579. 

8  Smith  v.  Jackson,  115  Mich.  192,  73  N.  W.  228 ;  Simonsen  v.  Hutchin- 
son,  231  111.  508,  83  N.  E.  183 ;  Root's  Will,  81  Wis.  263,  51  N.  W.  435. 

9  Brcadbridge  v.  Sackett,  138  Mich.  293,  101  N.  W.  525;  Spangler  v. 
Newman.  239   111.  616,  88  X.  E.  202;   Lupton  v.  Lupton,  2  Johns.  Ch. 
(N.  Y.)  613. 

37— Pro.  Ad. 


§  372  PKOBATE  AND  ADMINISTRATION.         [Chap.  28 

If  a  testator  gives  legacies  of  such  amounts  as  to 
greatly  exceed  the  value  of  his  personal  estate,  or  when 
he  had  no  personal  estate  whatever,  the  law  assumes 
that  he  gave  them  with  an  intent  to  have  them  paid 
from  his  real  estate.10  If  at  the  time  he  executed  the 
will  he  had  sufficient  personal  property  to  satisfy  the 
legacies,  but  afterward  converted  it  into  real  estate, 
so  that  at  the  time  of  his  death  they  would  abate  unless 
paid  from  the  real  estate,  they  will  be  so  charged.11 

A  direction  to  an  executor  to  pay  legacies  is  a  charge 
only  on  the  personal  estate  and  income  from  the  real 
estate,  unless  he  is  also  a  devisee,  when  they  would 
become  a  charge  on  his  devise,  if  the  personalty  was 
insufficient.12 

Specific  devises  follow  a  different  rule,  and  legacies 
will  not  be  charged  on  them  unless  such  was  the  clear 
intention  of  the  testator  and  there  is  no  residuary  or 
general  devise.13 

§  372.    Sales  of  real  estate  for  payment  of  legacies. 

When  a  legacy  is  given  that  is  effectual  to  pass  or 
charge  real  estate,  and  the  personal  property  is  insuffi- 
cient, the  executor  or  administrator  with  the  will  an- 
nexed may  be  licensed  to  sell  the  same  in  the  same 
manner  and  on  the  same  terms  and  conditions  as  for 

10  Thayer  v.  Finnegan,  134  Mass.  62;  McCorn  v.  McCorn,  100  N.  Y. 
511,  3  N.  E.  480;  Fecht  v.  Henze,  162  Mich.  52,  127  N.  W.  26;  Clotilde 
v.  Lutz,  157  Mo.  439,  57  S.  W.  1018. 

11  Scott  v.  Stebbins,  91  N.  Y.  €05;  Turner  v.  Gibb,  48  N.  J.  Eq.  526, 
22  Atl.  580. 

12  Thayer  v.  Finnegan,  134  Mass.  62;  Stroh  v.  O'Hearn   (Mich.),  142 
N.  W.  865. 

13  Davenport  v.  Sargeant,  63  N.  H.  538,  4  Atl.  569;  Newsom  v.  Thorn- 
ton, 82  Ala.  402,  8  South.  261. 

(578) 


Chap.  28]  PAYMENT  OF  LEGACIES.  §  373 

the  payment  of  debts.14  If  the  will  contains  a  power 
of  sale,  it  may  be  sold  by  the  personal  representative 
without  leave  of  the  court.15  The  order  of  sale  should 
direct  that  lands  generally  devised  be  sold  first,  then 
that  given  specifically.16 

When  a  legacy  is  charged  on  a  specific  or  general 
devise,  the  legatee  may  proceed  against  the  devisee  by 
a  bill  in  equity  to  foreclose  his  lien,17  or  by  action  at 
law.18  Where  a  devise  is  given  on  condition  of,  or 
subject  to,  the  payment  of  a  legacy,  the  legatee  is  the 
party  to  enforce  such  claim.  The  duty  of  an  executor 
to  bring  the  statutory  proceeding  for  a  sale  is  limited 
to  legacies  which  are  charged  generally  on  the  real 
estate. 

The  lien  of  legacies  on  lands* continues  until  they  are 
paid  and  follows  the  lands  into  the  hands  of  bona  fide 
purchasers.19 

§  373.  Payment  of  legacies  to  debtors  and  creditors. 
A  legacy  to  a  debtor  does  not  discharge  the  debt 
unless  the  will  clearly  shows  that  it  was  intended  to  be 
in  addition  to  the  amount  due  the  testator.  When  the 
estate  is  solvent,  the  legacy  is  considered  as  paying  it 
in  part,  if  less  than  the  amount  due  the  estate,  or  in 

14  Rev.  Stats.,  e.  17,5207,   [1471]. 

15  In  re  Manning's  Estate,  85  Neb.  60,  122  N.  W.  711. 

16  See  §  323.  supra. 

17  Smith  v.  Jackman,  115  Mich.  192,  73  N.  W.  228;  Sherman  v.  Sher- 
man, 4  Allen  (Mass.),  392. 

18  Swazey  v.  Little,  7  Pick.   (Mass.)    296. 

19  Wilson   (Herdlitchka)   v.  Foss,  2  Neb.  Unof.  428,  89  N.  W.  300; 
Wood's  Appeal.  133  Pa.  260,  19  Atl.  550;  Harris  v.  Fly,  7  Paige  (N.  Y.), 
421;  Aston  v.  Galloway,  38  N.  C.  126. 

(579) 


§  374  PROBATE  AND  ADMINISTRATION.         [Chap.  28 

full  if  it  equals  or  exceeds  it,  and  the  excess  above  the 
debt  is  payable  to  the  legatee.20 

When  a  legacy  to  a  creditor  equals  or  exceeds  the 
debt  due  from  the  testator,  the  common-law  rule  was, 
that  in  the  absence  of  an  expressed  intention,  the 
legacy  was  given  in  satisfaction  of  the  debt.21  On 
account  of  the  hardship  of  the  rule,  courts  scrutinize 
all  the  provisions  of  the  will  carefully,  and  take  into 
consideration  the  nature  and  character  of  the  debt,  and 
the  situation  of  the  parties,  and  if  there  is  any  evi- 
dence from  which  a  contrary  intention  will  be  pre- 
sumed, the  creditor  will  be  entitled  to  receive  his 
legacy  and  collect  his  claim  against  the  estate.22  A 
direction  to  pay  the  debts  gives  him  both  his  legacy 
and  claim.23 

§  374.    Vesting  of  legacies. 

Legacies  may  be  divided,  with  reference  to  the  time 
when  they  come  into  the  possession  of  the  beneficiary, 
into  four  classes:  First,  those  which  take  effect  both  in 
interest  and  possession  at  the  death  of  testator;  sec- 
ond, those  taking  effect,  at  a  specified  time  after  tes- 
tator's death;  third,  those  taking  effect  in  interest  at 
testator's  death  but  in  possession  at  a  future  time;  and 
fourth,  those  where  the  right  to  possession  and  enjoy- 
ment is  limited  to  a  contingency  which  may  or  may 

20  Charlick's  Estate,  11  Abb.  X.  C.   (X.  Y.)   56;  Baldwin  v.  Sheldon, 
48  Mich.  580,  12  N.  W.  872;  Kinney  v.  Newbold,  115  Iowa,  145,  88  X.  W. 
328. 

21  Strong  v.  Williams,  12  Mass.  391. 

22  Crouch  v.  Davis'  Exr.,  23  Gratt.  (Va.)  62;  Phillips  v.  McCombs, 
53  N.  Y.  494;  Morris  v.  Simpson,  3  Houst.  (Del.)  568. 

23  Boughton  v.  Flint,  74  N.  Y.  476. 

(580) 


Chap.  28]  PAYMENT  OF  LEGACIES.  §374 

not  happen.24  Courts  favor  vested  rather  than  con- 
tingent interests,  and  a  doubt  is  solved  in  favor  of 
the  legacy  vesting.25 

Legacies  of  the  first  class  are  payable  at  any  time 
after  the  will  is  probated,  and  bear  interest  from  the 
date  their  payment  is  ordered  by  the  county  court.26 
It  has  been  held  that  a  legacy  given  for  the  support 
of  the  legatee  bears  interest  from  the  date  of  letters 
testamentary.27 

They  should  be  paid  as  soon  as  the  condition  of  the 
estate  will  permit.28 

Until  the  time  a  contingent  legacy  vests  in  possession 
it  remains  with  the  executor,  or  trustee,  and  unless 
the  will  directs  otherwise,  the  income  goes  to  him. 
Dividends  on  corporate  stock  are  payable  to  the  holder 
at  the  time.29 

Stock  dividends  follow  a  different  rule.  As  between 
trustee  and  cestui  que  trust,  or  life  tenant  and  remain- 
derman, the  court  will  inquire  when  the  same  accrued 
or  was  earned;  if  before  the  cestui  que  trust  or  remain- 
derman became  entitled  to  possession,  they  go  into 
the  corpus  of  the  estate,  no  matter  when  declared  or 
made  payable.30 

24  McCartney  v.  Osborn,  183  111.  417,  9  N.  E.  210. 

25  Chess'  Appeal,  87  Pa.  362. 

26  Wheeler  v.  Kuthven,  74  N.  Y.  428. 

27  Thorn  v.  Garner,  113  N.  Y.  198;  Cooke  v.  Meeker,  36  N.  Y.  15. 

28  L.  0.  L.,  §  1303. 

29  Godwin  v.  Hardy,  57  Me.  143. 

30  Cook,  Stock  and  Stockholders,  554. 

(581) 


§  375  PROBATE  AND  ADMINISTRATION.         [Chap.  28 

§  375.    Lapsed  legacies. 

Under  the  common  law,  the  death  of  a  devisee  or 
legatee  before  the  testator  worked  a  lapse  of  the  legacy 
or  bequest,  and  the  same  became  a  part  of  the  residu- 
ary estate,  or  remained  undisposed  of,  according  to 
the  terms  of  the  will  and  the  intention  of  the  testator.31 

Our  statute  has  modified  this  rule  in  a  great  measure 
by  providing  that  when  a  devise  or  legacy  shall  be 
made  to  any  child  or  other  relation  of  the  testator,  and 
the  devisee  or  legatee  shall  die  before  the  testator, 
having  issue  who  shall  survive  the  testator,  such  issue 
shall  take  the  estate  so  given  by  the  will,  in  the  same 
manner  as  the  devisee  or  legatee  would  have  taken  if 
he  had  survived  the  testator,  unless  a  different  disposi- 
tion shall  be  made  or  intended  by  the  terms  of  the 
will.32  The  meaning  of  the  term  "relation,"  as  used 
in  this  statute,  is  not  very  clear.  The  supreme  court 
has  never  decided  whether  it  was  used  in  its  general 
sense,  as  including  relatives  by  affinity  and  consan- 
guinity, or  as  limited  to  relatives  by  consanguinity. 
Judging  from  the  rule  laid  down  in  Van  Riper  v.  Van 
Riper,33  a  fair  construction  would  limit  it  to  relatives 
by  consanguinity. 

Under  the  common  law,  if  an  estate  is  devised  to 
two  or  more  persons  as  joint  tenants,  or  to  two  or  more 
persons,  no  words  of  limitation  or  explanation  being 
used,  the  death  of  one  or  more  during  the  lifetime  of 
the  testator  would  not  cause  any  portion  of  the  legacy 

31  Birdsall  v.  Hewlett,  1  Paige  (N.  Y.),  32;  Prescott  v.  Prescott,  7 
Met.  (Mass.)  145;  Ballard  v.  Ballard,  18  Pick.  (Mass.)  41. 

32  Rev.  Stats.,  c.  17,  §  50,  [1314];  L.  O.  L.,  §  7327. 

33  2  N.  J.  Eq.  1. 

(582) 


Chap.  28]  PAYMENT  OP  LEGACIES.  §  376 

or  devise  to  lapse,  but  it  would  vest  in  the  survivor 
or  survivors.34 

This  rule  is  not  generally  followed.  The  parties  take 
as  tenants  in  common  and  not  as  joint  tenants,  so  that 
on  the  death  of  one  of  them  during  the  life  of  the  testa- 
tor his  share  lapses,34*  unless  the  deceased  beneficiary 
was  a  descendant  or  relation  of  the  testator  or  the  will 
otherwise  provided. 

A  legacy  by  a  debtor  to  a  creditor  will  not  lapse  on 
the  death  of  the  devisee  before  the  testator,  the  pre- 
sumption being  that  it  was  meant  as  a  satisfaction  of 
the  debt,  or  a  portion  thereof,  but,  if  a  contrary  in- 
tention can  be  ascertained  from  any  circumstance  or 
expression,  it  will  be  treated  as  lapsed.35 

Legacies  will  also  lapse  when  given  to  an  associa- 
tion or  corporation  which  has  ceased  to  exist,36  or  is 
not  at  the  time  capable  of  taking.  Legacies  which  fail 
because  for  any  reason  incapable  of  being  paid  on 
account  of  conditigns,  or  other  cause,  are  usually  con- 
sidered as  void  in  their  inception. 

§  376.    Lapsed  and  void  legacies. 

Unless  a  contrary  intention  be  expressed  in  clear 
and  absolute  terms,  a  lapsed  legacy  will  pass  into  the 
residuary  estate,  should  there  be  one  created  by  a 
clause  general  in  its  terms,  and  the  next  of  kin  and 

S4  2  Jarman,  Wills,  251,  253. 

34a  Kaser  v.  Kaser,  68  Or.  153,  137  Pac.  187;  Maxwell  v.  Higging, 
38  Neb.  671,  57  N.  W.  388;  Smith  v.  Haynes,  202  Mass.  531,  89  N.  E. 
159;  Haug  v.  Schumaker,  166  N.  Y.  506,  60  N.  E.  245. 

35  Resell  v.  Minton,  42  N.  J.  Eq.  123,  7  Atl.  342;  Van  Riper  v.  Van 
Riper,  2  N.  J.  Eq.  1. 

36  Gladding  v.  St.  Mathews'  Church,  25  R.  I.  628,  57  Atl.  860. 

(583) 


§  376  PROBATE  AND  ADMINISTRATION.          [Chap.  28 

heirs  at  law  will  take  no  interest  therein.37  If  there 
be  no  such  clause,  it  would  necessarily  go  to  the  heirs 
at  law,  and  be  distributed  according  to  the  laws  of 
distribution  and  descent;38  and  if  there  is  a  residuary 
bequest  to  two  or  more  persons,  and  a  share  of  one 
lapses  or  fails  for  any  reason,  such  share  also  becomes 
a  part  of  the  intestate  estate.39 

In  regard  to  devises  which  the  courts  have  held  to 
be  absolutely  void,  there  is  some  conflict  of  authority, 
some  courts  holding  that  they  should  go  to  the  residu- 
ary devisee  or  legatee,  if  there  be  any.40  The  weight 
of  authority,  however,  is  that  the  devise,  although  void 
from  the  beginning,  was  never  actually  intended  by 
the  testator  to  form  a  part  of  his  residuary  estate,  and 
that  the  estate  therefore  goes  to  the  heirs  at  law,  not 
on  the  ground  of  any  supposed  intention  of  the  tes- 
tator to  confer  any  benefit  upon  them,  but  because  they 
are  entitled  to  all  that  part  of  his  estate  not  legally 
disposed  of  by  his  will,41  and  accumulations  directed 
to  be  made  by  the  residuary  clause  also  pass  to  the 
heir  at  law.42  If  a  devise  or  bequest  is  charged  with 

37  West  v.  West,  89  Ind.  529;   Holbrook  v.  McCleary,  79   Ind.   167; 
In  re  Benson,  96  N.  Y.  499. 

38  Levering  v.  Lovering,  129  Mass.  97. 

39  Burnet's  Exrs.  v.  Burnet,  30  N.  J.  Eq.  595;  Garthwaite's  Exrs.  v. 
Lewis,  25  N.  J.  Eq.  351;   Huber's  Appeal,  80  Pa.  348;   Haldeman  v. 
Haldeman,  40  Pa.  29. 

40  Hayden  v.  Inhabitants  of  Stoughton,  5  Pick.  (Mass.)  528;  Brigham 
v.  Shattuck,  10  Pick.  (Mass.)   306. 

41  Greene  v.  Dennis,   6  Conn.   292;    Van  Kleeck  v.   Reformed   Dutch 
Church,  6  Paige   (N.  Y.),  600;  James  v.  James,  4  Paige   (N.  Y.),  115; 
Stonestreet  v.  Doyle,  75  Va.  356 ;  Wilson  v.  Odell,  58  Mich.  533,  25  N.  W. 
506. 

42  Wilson  v.  Odell,  58  Mich.  533,  25  N.  W.  506;  Seibert's  Appeal,  liO 
Pa.  329,  1  Atl.  346. 

(584) 


Chap.  28]  PAYMENT  OF   LEGACIES.  §  377 

another  bequest,  and  the  second  bequest  fails  for  any 
reason,  the  first  devise  or  bequest  profits  by  the  lapse.43 

§  377.    Abatement  of  legacies. 

Abatement  may  be  defined  as  the  reduction  of  a 
legacy,  either  general  or  specific,  on  account  of  the 
estate  of  the  testator  not  being  sufficient  for  the  pay- 
ment of  the  debts  and  legacies,  or  because  of  the  failure 
of  any  fund  from  which  they  are  to  be  paid.44  A  spe- 
cific legacy  abates  entirely  with  the  failure  of  the 
specific  fund  or  particular  article  of  personalty  be- 
queathed, and  the  legatee  will  not  be  entitled  to  share 
in  any  other  portion  of  the  estate  by  virtue  of  his 
legacy.45  It  will  not  abate  for  the  payment  of  debts 
unless  there  is  a  lack  of  sufficient  other  assets  of  the 
estate  to  pay  them.  It  has  been  held  that,  if  the  fund 
from  which  a  demonstrative  legacy  is  to  be  paid  fails 
from  any  cause,  the  legatee  is  nevertheless  entitled  to 
share  in  the  estate  the  same  as  a  general  legatee.46 

A  legacy  for  a  valuable  consideration  or  in  lieu  of  a 
distributive  share  follows  the  same  rule  in  regard  to 
abatement  as  a  specific  legacy,  taking  preference  over 
general  and  demonstrative  legacies.  It  must  be  paid 
in  full  unless  the  assets  are  insufficient  to  pay  it  and 
the  debts  and  expenses  of  administration.47  A  bequest 
of  one-third  of  testator's  property  is  a  specific  legacy, 

43  1  Jarman,  Wills,  346. 

44  Rapalje  &  Lawrence,  Law  Diet. 

45  Roper,  Legacies,  191. 

46  Armstrong's  Appeal,  63  Pa.  312;   Bradford  v.  Brinley,   145  Mass. 
81,  13  X.  E.  1. 

4"  Blower  v.  Morret,  2  Ves.  Sr.  420;  Brown  v.  Brown,  79  Va.  648; 
Ellis  v.  Aldrich,  70  N.  H.  219,  47  Atl.  95;  Moore  v.  Alden,  80  Me.  301, 
14  Atl.  199 ;  Security  Co.  v.  Bryant,  52  Conn.  311. 

(585) 


§  378  PBOBATE  AND  ADMINISTRATION.         [Chap.  28 

and  therefore  cannot  be  taken  for  the  debts  unless 
there  is  no  other  property.48 

When  the  assets  are  insufficient  to  pay  the  general 
legacies,  both  demonstrative  and  general  legacies  will 
abate  in  proportion  to  the  deficiency,  unless  by  the 
terms  of  the  will  the  testator  has  one  or  more  legatees 
above  the  others,49  and  the  burden  of  proof  is  upon 
him  who  asserts  that  the  legacy  should  be  treated  as 
a  specific  one.50  If  there  is  a  failure  of  assets  sufficient 
to  pay  the  debts,  then  specific  legacies  may  be  taken 
for  that  purpose. 

§  378.    Ademption  of  legacies. 

Ademption  may  be  defined  as  the  revoking  or  with- 
holding of  a  legacy  by  reason  of  some  act  occurring 
during  the  life  of  the  testator,  by  means  of  which  he 
has  parted  title  with  the  subject  of  the  legacy,  or 
its  identity  or  description  or  value  has  become  so 
changed  that  it  cannot  be  identified,  or  the  intention 
or  purpose  for  which  it  was  given  has  been  fulfilled 
during  the  lifetime  of  the  testator;51  as,  where  a  parent 
has  given  a  legacy  to  a  child,  and  subsequently  gives 
to  the  child  the  property,  or  a  portion  thereof,  which 
was  included  in  the  legacy,  the  purpose  or  intent  of 

48  Currier  v.  Currier,  70  N.  H.  149,  47  Atl.  94. 

49  Emery  v.  Batchelder,  78  Me.  233;  Duncan  v.  Inhabitants  of  Town- 
ship of  Franklin,  43  N.  J.  Eq.  143 ;  Moore  v.  Alden,  80  Me.  301,  14  Atl. 
199;  Security  Co.  v.  Bryant,  52  Conn.  311;  Ellis  v.  Aldrich  (N.  H.),  47 
Atl.  95. 

50  Shepherd  v.  Guernsey,  9  Paige  (N.  Y.),  357. 

51  Richards  v.  Humphreys,  15  Pick.   (Mass.)  133;  Wyckoff  v.  Perrine, 
37  N.  J.  Eq.  118 ;  Hill  v.  Toms,  87  N.  C.  493 ;  Webb  v.  Jones,  36  N.  J. 
Eq.  163,  168;  Decker  v.  Decker,  121  111.  341;  Taylor  T.  Tolen,  38  N.  J. 
Eq.  91. 

(586) 


Chap.  28]  PAYMENT  OF  LEGACIES.  §  378 

the  parent  not  being  stated,  the  law  presumes  the 
legacy  to  have  been  intended  as  the  share  or  portion 
of  the  estate  to  come  to  such  child  at  his  death,  and 
the  legacy  would  be  wholly  or  partially  adeemed,  as 
the  case  might  be.52  Money  paid  to  a  son  for  the  pur- 
pose of  defraying  the  expenses  of  his  education,  unless 
the  will  expressly  provides  that  all  payments  made  to 
legatees  before  testator's  death  shall  be  treated  as 
advancements,  does  not  come  within  the  rule,53  nor 
does  the  rule  apply  to  realty.54 

62  Clendening  v.  Clymer,  17  Ind.  155. 

53  White  v.  Moore,  23  S.  C.  456. 

M  Langdon  v.  Astoi's  Exrs.,  16  N.  Y.  34;  1  Roper,  Legacies,  365. 

(587) 


CHAPTER  XXIX. 

GIFTS  CAUSA  MORTIS  AND  ADVANCEMENTS. 

§  379.  Gifts  Causa  Morfis— Defined. 

380.  What  Property  Subject  to  Gift  Causa  Mortis. 

381.  Effect  of  Gift. 

382.  How  Validity  of  Gift  Determined. 

383.  Advancement — Defined. 

384.  Changing  Character  of  Payment. 

385.  Evidence  Necessary  to  Prove  Advancement. 

386.  Testate  Estates. 

387.  Value  of  Advancement. 

388.  Advancements  and  Distribution. 

§  379.    Gifts  causa  mortis  defined — How  made. 

A  gift  causa  mortis  may  be  defined  as  a  delivery 
made  by  a  person  in  sickness,  and  apprehending  imme- 
diate death,  to  the  possession  of  another,  of  personal 
goods  to  be  kept  as  his  own,  at  the  donor's  decease, 
and  subject  to  the  implied  condition  that,  if  the  donee 
die  first,  or  the  donor  recover,  the  gift  shall  be  void.1 
Such  gifts  are  not  looked  upon  with  favor  by  the 
courts,  and  all  requisites  to  their  validity  must  be 
clearly  established.2  It  must  be  made  in  apprehension 
of  the  death  of  the  donor,  either  from  infirmity,  old 
age,  severe  illness  or  from  impending  danger.3  Any 
gift  made  under  such  circumstances  is  presumed  to  be 

1  2  Bl.  Com.  514;  Smith  v.  Ferguson,  90  Ind.  229;  Hillman  v.  Young, 
64  Or.  79,  127  Pac.  795. 

2  Gano  v.  Fisk,  43  Ohio  St.  462,  3  N.  E.  532. 

3  Robinson  v.  Eing,  72  Me.  140;   Irish  v.  Nutting,  47  Barb.   (N.  Y.) 
370;  Gourley  v.  Linsenbigler,  51  Pa.  345;  Rhodes  v.  Childs,  64  Pa.  18; 
First  Nat.  Bank  of  New  Haven  v.  Balcon,  35  Conn.  351;   Nicholas  v. 
Adams,  2  Whart.  (Pa.)  17;  Grymes  v.  Hone,  49  N.  Y.  17. 

(588) 


Chap.  29]  GIFTS  AND  ADVANCEMENTS.  §  379 

a  gift  causa  mortis,  and  not  inter  vivos*  The  prop- 
erty must  be  delivered  by  the  donor  to  the  donee,  and, 
unless  there  is  such  actual  change  of  possession  as 
amounts  to  an  entire  change  of  possession  of  the  prop- 
erty, no  title  passes.5  Such  delivery  may  be  to  a  third 
person,  in  trust  for  the  donee,  although  the  gift  does 
not  come  to  the  knowledge  of  the  donee,  and  is  not 
accepted  by  him  until  after  the  death  of  the  donor. 

The  person  to  whom  the  delivery  is  made  is  regarded 
as  the  trustee  for  the  donee,  and  his  acts  in  holding 
the  property  for  the  donee  are  deemed  to  be  in  the 
donee's  interest,  the  acceptance  of  the  donee  being  pre- 
sumed.6 The  donor  must  relinquish  possession  of  the 
property,  and  actual  possession  be  taken  by  the  donee, 
or  by  someone  as  trustee  for  him,  and  such  possession 
retained  by  the  party  to  whom  the  gift  is  delivered, 
until  the  death  of  the  donor.7  Therefore,  a  written 
request  by  a  person  in  apprehension  of  immediate 
death,  to  pay  or  deliver  certain  property  therein  de- 
scribed to  a  third  party,  will  not  constitute  a  gift  causa 
mortis,  for  it  would  be  in  effect  a  will  executed  without 
the  formalities  required  by  the  statute.8 

4  Emery  v.  Clough,  63  N.  H.  552,  4  Atl.  796. 

5  Darland  v.  Taylor,  52  Iowa,  503,  3  N.  W.  510;   Fearing  v.  Jones, 
149  Mass.  12,  20  N.  E.  199;  Drew  v.  Hagerty,  81  Me.  231,  17  Atl.  63; 
Coleman  v.  Parker,  114  Mass.  30;  Yancy  v.  Field,  85  Va.  756,  8  S.  E. 
721;   Wilcox  v.  Matteson,  53  Wis.  23,  9  N.  W.  814;   Gano  v.  Fisk,  43 
Ohio    St.  462,  3  N.  E.  532. 

6  Hillman  v.  Young,  64  Or.  79,  127  Pac.  793;   Clough  v.  Clough,  117 
Mass.  83;  Devol  v.  Dye,  123  Ind.  321,  24  N.  E.  246;  Hogan  v.  Sullivan, 
114  Iowa,  456,  87  N.  W.  448;  Beals  v.  Crowley,  59  Cal.  665;  Woodburn 
v.  Woodburn,  123  111.  608,  14  N.  E.  58,  16  N.  E.  209. 

7  Smith  v.  Ferguson,  90  Ind.  229;  Daniel  v.  Smith,  75  Cal.  548;  Clough 
V.  Clough,  117  Mass.  83. 

8  Basket  v.  Hassell,  107  U.  S.  602,  2  Sup.  Ct.  Eep.  415. 

(589) 


§  380  PEOBATE  AND  ADMINISTRATION.         [Chap.  29 

It  is  not  necessary  that  the  beneficiaries  be  named 
when  the  property  is  delivered  to  a  trustee,  if  they 
are  afterward  designated  by  the  donee.9  The  gift 
must  be  accepted  by  the  donor,  but,  being  of  a  bene- 
ficial interest,  it  will  be  presumed  in  cases  where  made 
to  a  trustee.10  Where  property  is  turned  over  to  the 
donee  by  the  donor  shortly  before  his  death,  and  the 
donee  does  not,  at  the  time  he  received  it,  signify  his 
acceptance,  but,  after  the  death  of  the  donor,  accepts 
it,  the  gift  will  fail.11 

§  380.  What  property  subject  to  gift  causa  mortis. 
Gifts  causa  mortis,  from  the  very  nature  of  the  case, 
are  limited  to  specific  articles  of  personalty,  specifi- 
cally delivered.12  Any  kind  of  personal  property  can 
be  given  except  shares  of  stock  in  corporations,  the 
delivery  of  which  was  not  accompanied  by  a  formal 
assignment  executed  by  the  donor  to  the  donee.13  A 
promissory  note  executed  by  the  donor  to  the  donee, 
and  without  consideration,  is  more  in  the  direction  of 
an  order  or  direction  to  pay  than  a  payment,  and  can- 
not be  recovered  on  as  a  gift  causa  mortis.1* 

»  Hogan  v.  Sullivan,  114  Iowa,  456,  87  N.  W.  448;  Caylor  v.  Caylor's 
Estate,  22  Ind.  App.  666,  52  N.  E.  465;  Sorrells  v.  Collins,  110  Ga.  518, 
36  S.  E.  74. 

10  Hogan  v.  Sullivan,  114  Iowa,  456,  87  N.  W.  448;  Clough  v.  Clough, 
117  Mass.  83. 

11  McGrath  v.  Beynolds,  116  Mass.  566. 

12  Marshall  v.  Berry,  13  Allen  (Mass.),  43;  Headley  v.  Kirby,  18  Pa. 
326;  Meach  v.  Meach,  24  Vt.  591. 

13  Egerton's  Exrs.  v.  Egerton,  17  N.  J.  Eq.  419. 

14  Parish  v.  Stone,  14  Pick.  (Mass.)  198;  Starr  v.  Starr,  9  Ohio  St. 
74;  Second  Nat.  Bank  v.  Williams,  13  Mich.  282;  Smith  v.  Smith's  Admr., 
30  N.  J.  Eq.  564. 

(590) 


Chap.  29]  GIFTS  AND  ADVANCEMENTS.  §  381 

A  donor's  own  check  payable  to  the  donee  cannot 
be  treated  as  a  gift,  there  being  no  actual  delivery  of 
the  money,  but  instead  an  order  on  the  bank  to  pay  it, 
unless  given  for  a  valuable  consideration,15  or  unless 
the  donee  has  parted  with  it  for  a  valuable  considera- 
tion or  cashed  it.16  Checks,  and  commercial  paper 
generally,  held  by  the  owner  as  payee  or  indorsee  may 
be  indorsed  by  him  and  delivered  as  a  valid  gift.17 

Bonds,  shares  of  stock  in  corporations,  insurance 
policies  and  savings  bank  deposits  may  be  assigned 
and  delivered  as  such  gifts,  and  when  the  entire  per- 
sonal property  consists  of  specific  items,  he  can  thus 
practically  dispose  of  his  entire  estate.18 

§  381.    Effect  of  gift. 

A  gift  causa  mortis  is  not  an  absolute  disposition 
of  one's  property,  but  substantially  a  substitute  for  a 
bequest  of  the  subject  of  the  gift,  and  is  revocable 
at  the  pleasure  of  the  donor  during  his  life  and  by  the 
death  of  the  donee  before  the  donor.19  If  the  donor 
recover  from  the  particular  illness  or  peril  which  was 
the  moving  cause  of  the  gift  being  made,  such  recovery 
defeats  it,  and  he  may,  at  his  option,  regain  possession 
of  the  property.20  He  also  has  the  right,  at  any  time 
before  his  death,  to  revoke  the  same,  by  ordering  a 

15  Whitehouse  v.   Whitehouse,   90   Me.  468,   38   Atl.   374;   Burke  v. 
Bishop,  27  La.  Ann.  465,  27  Am.  Eep.  567;  Basket  v.  Hassell,  107  U.  S. 
602,  2  Sup.  Ct.  Rep.  415. 

16  Tate  v.  Hilbert,  2  Ves.  Jr.  Ill;  Beak  v.  Beak,  L.  E.  13  Eq.  489. 

17  Foster  v.  Murphy,  76  Neb.  576,  107  N.  W.  843. 

18  Meach  v.  Meach,  24  Vt.  591. 

19  Hillman  v.  Young,  64  Or.  79,  127  Pac.  793. 

20  Giymes  v.  Hone,  49  N.  Y.  17. 

(591) 


§  382  PROBATE   AND  ADMINISTRATION.          [Chap.  29 

return  of  the  property,  and  though  the  donee  neglects 
or  refuses  to  comply  with  the  demand,  the  revocation 
is  complete  and  the  donee  loses  what  rights  in  the  prop- 
erty he  may  have  possessed.21 

If  the  estate  proves  to  be  insolvent,  the  gift  will  not 
be  sustained.  Only  such  property  can  be  the  subject 
of  a  valid  gift  as  is  not  needed  for  the  payment  of 
the  debts.  Any  other  rule  would  give  a  person  so 
disposed  an  easy  way  to  defeat  the  claims  of  his 
creditors.22 

§  382.    How  validity  of  gift  determined. 

The  question  whether  such  articles  of  personalty 
were  disposed  of  by  gift  causa  mortis  usually  arises 
when  the  executor  or  administrator  attempts  to  take 
possession.  The  statutory  proceedings  for  disclosure 
of  assets23  will  give  him  some  information  but  cannot 
determine  the  validity  of  the  gift.  Replevin  or  action 
for  conversion  is  the  effective  remedy.  The  burden 
of  proof  is  held  to  be  with  the  donee  to  prove  that  the 
donor  actually  delivered  the  property  to  him  in  con- 
templation of  death.24  The  donee  is  precluded  from 
testifying  to  his  conversations  or  transactions  with  the 
donor  to  the  same  extent  as  in  the  matter  of  claims 
against  the  estate.25  The  presumption  that  a  gift 
made  by  a  party  who  knows  that  he  is  near  death  is 

21  Jones  v.  Selby,  Finch  Prec.  Ch.  300;  Merchant  v.  Merchant,  2  Brad. 
Bur.   (N.  Y.)   432. 

22  Michener  v.  Dale,  23  Pa.  59;  Borneman  v.  Sidlinger,  15  Me.  429. 

23  Section  197,  supra. 

24  Buecker  v.  Carr,  60  N.  J.  Eq.  300,  47  Atl.  34;   People's  Savings 
Bank  v.  Look,  95  Mich.  7,  54  N.  W.  629. 

25  Section  292  et  seq.,  supra. 

(592) 


Chap.  29]  GIFTS  AND  ADVANCEMENTS.  §  383 

not  intended  as  one  inter  vivos  is  not  conclusive.28 
Declarations  of  the  donor  made  after  the  date  of  the 
alleged  gift  and  the  relationship  and  conditions  of  the 
parties  are  competent  evidence  to  establish  it.27 

§  383.    Advancement — Defined. 

An  advancement  may  be  defined  as  a  gift  of  any 
property,  either  real  or  personal,  by  a  parent  to  a  child, 
or  by  an  ancestor  to  lineal  descendants,  in  anticipation 
of  such  child  or  lineal  descendant's  share  in  such 
parent's  or  ancestor's  estate.  As  far  as  the  division 
and  distribution  of  the  estate  is  concerned,  it  is  re- 
garded as  a  part  thereof,  and  is  considered  by  such 
child  or  other  descendant  as  the  whole  or  a  part  of  his 
share  in  the  estate.28 

If  of  real  estate,  it  may  be  of  an  estate  or  freehold 
or  a  lesser  estate.  The  deeds  to  the  same  must  be 
executed  and  delivered  and  all  provisions  therefor  com- 
pleted during  the  lifetime  of  the  ancestor,  but  the  right 
to  the  enjoyment  of  the  premises  need  not  vest  until 
after  his  death.29 

All  gifts  or  grants  shall  be  deemed  to  have  been 
made  in  advancement,  if  they  are  expressed  in  the  gift 
or  grant  to  be  so  made,  or  if  charged  in  writing  by 

26  Carty  v.  Connolly,  91  Cal.  15,  27  Pac.  599;  Henschel  v.  Maurer,  69 
Wis.  576,  34  N.  W.  926. 

27  Keniston  v.  Sceva,  54  N.  H.  24;  Connor  v.  Boot,  11  Colo.  183,  17 
Pac.  773. 

28  Rev.  Stats.,  c.  17,  §12,   [1276];   L.  O.  L.,  §7354;   Yundt's  Appeal, 
13  Pa.  575. 

20  Graves  v.  Spedden,  46  Md.  527;  Nettleton  v.  Nettleton,  17  Conn. 
542. 

38-Pro.Ad.  (593) 


§  384  PEOBATE  AND  ADMINISTRATION.          [Chap.  29 

the  decedent  as  an  advancement,  or  acknowledged  in 
writing  as  such  by  the  child  or  other  descendant.30 

The  doctrine  of  advancement  applies  to  a  gift  as 
such  to  a  child  or  descendant  who  died  previous  to 
the  death  of  the  donee  leaving  issue,31  to  illegitimate 
children,  except  in  case  of  the  death  of  the  parent  of 
the  child  before  the  donee,32  and  to  gifts  by  both 
parents.33 

It  does  not  apply  to  property  given  by  a  husband 
or  wife  to  each  other  or  to  collateral  heirs,  but  only 
to  children  and  lineal  descendants.34  By  agreement 
between  the  parties,  a  gift  by  a  donor  to  the  husband 
of  his  daughter  may  be  made  an  advancement  and 
treated  as  a  gift  to  the  daughter.35 

§  384.    Changing  character  of  payment. 

An  advancement  may  be  revoked  or  rescinded  by 
the  donor  and  changed  into  an  absolute  gift  in  the 

30  Eev.  Stats.,  c.  17,  §  15,   [1279];  L.  O.  L.,  §7357;  Lodge  v.  Fitch, 
72  Neb.  652,  101  N.  W.  338;  Boden  v.  Mier,  71  Neb.  191,  98  N.  W.  701. 

31  Hessler  v.  Cady,  79  Neb.  691,  113  N.  W.  147. 

32  Page  v.  Page,  8  Neb.  202,  where  the  child  had  been  legitimatized 
by  the  marriage  of  his  parents  and  the  birth  of  lawful  issue  to  them,  so 
that  his  interest  in  the  grandparent's  estate  was  the  same  as  theirs. 

33  Murphy  v.  Nathans,  46  Pa.  508;  Daves  v.  Hapgood,  54  N.  C.  253. 

34  Greiner's  Appeal,  103  Pa.  89;  In  re  Morgan,  104  N.  Y.  74,  9  N.  E. 
861. 

35  Hartwell  v.  Eice,  1  Gray   (Mass.),  587;   Booth  v.  Faster,  111  Ala. 
312,  20  South.  356;  Stayner  v.  Bower,  42  Ohio  St.  314,  in  which  it  was 
held  that  the  husband  would  be  held  the  trustee  of  the  wife,  but  that  the 
wife  was  entitled  to  receive  her  full  distributive  share  from  her  father's 
estate,  and  the  estate  subrogated  to  the  rights  and  remedies  against  the 
husband.     On  account  of  the  statutes   giving   a  married   woman   full 
control  over  her  separate  property,  it  would  be  necessary  for  her  to 
«xpressly  assent  to  the  gift  being  made  as  an  advancement. 

(594) 


Chap.  29]  GIFTS  AND  ADVANCEMENTS.  §  385 

same  manner  as  it  became  an  advancement,36  and  a 
gift  or  debt  may  be  changed  into  an  advancement  in 
the  same  way,37  provided  the  debt  has  not  become 
outlawed.38 

§  385.    Evidence  necessary  to  prove  advancements. 

Oral  evidence  is  inadmissible  to  prove  that  payments 
by  a  donor  were  intended  by  him  to  be  treated  as  ad- 
vancements, and  the  doctrine  of  advancement  by  pre- 
sumption does  not  prevail  in  this  state.39  Payments 
of  money  or  other  valuable  property  to  a  child,  or  con- 
veyances of  real  estate,  unless  otherwise  expressed  in 
the  consideration,  or  explained  by  competent  evidence, 
are  presumed  to  be  gifts  and  not  advancements.40 

To  constitute  a  payment  or  conveyance  or  delivery 
of  property  an  advancement,  there  must  have  been  an 
intent  on  the  part  of  the  donor  to  so  consider  it,  though 
it  is  not  necessary  that  such  intent  be  known  to  the 
donee  or  concurred  in  by  him,41  and  such  intent  must 
be  shown  by  written  evidence,  either  the  grant  itself, 
charges  entered  by  the  donor,  or  the  receipt  of  the 
donee,42  and  such  writing  or  charges  by  the  donor  must 
have  been  made  during  the  lifetime  of  the  donee.  The 
character  of  the  payment  or  conveyance  cannot  be 

36  Sherwood  v.  Smith,  23  Conn.  516. 

37  Eoland  v.  Schrack,  29  Pa.  125;  Kirby's  Appeal,  109  Pa.  St.  41. 
88  Levering  v.  Rittenhouse,  4  Whart.   (Pa.)   130. 

39  Boden  v.  Mier,  71  Neb.  191,  98  N.  W.  701;  Riddell  v.  Riddell,  70 
Neb.  472,  97  N.  W.  609;  Lodge  v.  Fitch,  72  Neb.  652,  101  N.  W.  338. 

40  Johnson  v.  Ghost,  11  Neb.  414,  8  N.  W.  391. 

41  Johnson  v.  Evans,  8  Gill   (Md.),  155;   Johnson  v.  Hoyle,  3  Head 
(Tenn.),  56. 

42  Riddell  v.  Riddell,  70  Neb.  472,  97  N.  W.  609;  Boden  v.  Mier,  71 
Neb.  191,  98  N.  W.  701;  Lodge  v.  Fitch,  72  Neb.  652,  101  N.  W.  338. 

(595) 


§§  386,  387       PROBATE    AND   ADMINISTRATION.          [Chap.  29 

changed  after  the  death  of  the  party  to  whom  it  is 
given  or  granted.43 

The  receipt  of  the  donee  or  the  entries  in  the  books 
of  account  of  the  donor  or  the  terms  of  the  convey- 
ance are  sufficient  to  charge  the  donee  with  the  ad- 
vancement.44 

§  386.    Testate  estates. 

The  doctrine  of  advancements  does  not  apply  to 
testate  estates  unless  the  will  so  directs.45  Advance- 
ments previously  made  are  converted  by  the  will  into 
gifts.46  Should  there  be  a  surplus  after  the  payment 
of  all  legacies,  debts  and  charges,  and  there  is  no 
residuary  clause,  it  will  be  distributed  without  regard 
to  any  payments  made  by  the  ancestor  to  the  heirs 
during  his  lifetime.47 

§  387.    Value  of  advancement. 

If  the  value  of  the  advancement  be  expressed  in  the 
conveyance,  or  in  the  charge  made  therefor  by  the 
intestate,  or  in  the  acknowledgment  of  the  party  re- 
ceiving it,  it  shall  be  considered  as  of  that  value  in  the 
division  and  distribution  of  the  estate;  otherwise  it 
shall  be  estimated  according  to  its  value  when  given 
as  near  as  the  same  can  be  ascertained.48  Where  pos- 

43  Hessler  v.  Cady,  79  Neb.  691,  113  N.  W.  147. 

44  French  v.  Strumberg,  52  Tex.   92;   Brown  v.  Brown,   16  Vt.   197; 
Fellows  v.  Little,  46  N.  H.  27. 

45  Hall  v.  Hall,  132  Iowa,  664,  110  N.  W.  148;  Turpin  v.  Turpin,  88 
Mo.  337;  Buehler's  Appeal,  100  Pa.  385. 

46  McCormick  v.  Hanks,  105  Iowa,  639,  75  N.  W.  494;  Boron  v.  Kent, 
190  N.  Y.  422,  83  N.  E.  472. 

47  Turner's  Appeal,  52  Mich    298,  18  N.  W.  123. 

48  Kev.  Stats.,  c.  17,  §  16,  [1280]  ;  L.  O.  L.,  §  7358. 

(596) 


Chap.  29]  GIFTS  AND  ADVANCEMENTS.  §  388 

session  was  postponed  until  the  death  of  the  decedent 
or  a  future  date,  it  is  treated  as  " given"  when  the 
party  takes  possession.49  It  has  been  held  that  the 
donee  of  a  life  insurance  policy  should  be  charged  with 
the  net  amount  received  from  the  company.50 

The  donee  is  not  chargeable  with  interest  on  such 
valuation  previous  to  the  death  of  the  intestate,51  but 
for  the  purpose  of  equalizing  the  shares  it  is  usually 
allowed  after  the  death  of  the  ancestor.52  The  fact 
that  the  advancement  became  worthless  or  depreciated 
in  value  during  its  possession  by  the  donee  does  not 
relieve  him  from  liability  to  account  for  the  same  at 
its  value  when  he  received  it.  He  would  profit  from 
the  increase  and  must  bear  the  loss  from  deprecia- 
tion.53 

§  388.    Advancements  and  distribution. 

If  the  amount  of  such  advancement  to  an  heir  shall 
exceed  his  share,  he  is  not  required  to  refund  any  part 
of  it,  and  if  less,  he  is  entitled  to  enough  more  to 
give  him  his  full  share.  If  the  advancement  was  made 
in  real  estate,  its  value  shall  be  considered  a  part  of 
the  real  estate  to  be  divided,  and  if  in  personal  estate, 

49  pigg  v.  Carroll,  89  111.  205;  Moore  v.  Burrow,  89  Tenn.  107,  17  S.  E. 
1035. 

50  Cazassa  v.   Cazassa,  92   Tenn.   373,  22  S.  W.   560;    Culberhouse   v. 
Culberhouse,  68  Ark.  405,  59  S.  W.  38. 

51  Black  v.  Whitall,   9   X.   J.  Eq.  572;   Bay  v.  Loper,   65   Mo.   470; 
Hosmer  v.  Sturges,  31  Ohio  St.  657;  Pigg  v.  Carroll,  89  HI.  206;  Jackson 
v.  Jackson,  28  Miss.  674. 

52  Sprague  v.  Moore,  130  Mich.  92,  89  X.  W.  712;  Moore  v.  Burrow, 
89  Tenn.  101,  17  S.  W.  1035. 

53  Fennell  v.  Henry,  70  Ala.  484;  Kelley  v.  McCallum,  83  N.  C.  563; 
Xelson  v.  Wyan,  21  Mo.  347. 

(597) 


§  388  PROBATE  AND  ADMINISTRATION.         [Chap.  29 

as  a  part  of  the  personalty;  and  if  in  either  case  it 
shall  exceed  the  share  of  real  and  personal  estate,  re- 
spectively, that  would  have  come  to  the  heir  so  ad- 
vanced, he  shall  not  refund  any  part  of  it,  but  shall 
receive  so  much  less  out  of  the  other  part  of  the  estate 
as  will  make  his  whole  share  equal  to  those  of  the 
other  heirs  who  are  of  the  same  degree  with  him.54 

The  advancement  to  a  child  or  lineal  descendant  of 
an  intestate  who  predeceased  him  leaving  issue  is  ad- 
justed in  the  same  manner,  his  taking  the  share  he 
would  have  taken  if  living.55 

In  the  case  of  intestate  estates,  all  questions  con- 
cerning advancements  are  determined  by  the  county 
court  on  the  hearing  for  final  distribution.56  In  a  tes- 
tate estate,  where  certain  payments  were  directed  by 
the  will  to  be  treated  as  advancements,  the  district 
court  has  power  to  adjust  the  same  between  devisees 
in  a  suit  for  partition.57 

54  Rev.  Stats.,  c.  17,  §§  13,  14,  [1277],  [1278];  L.  O.  L.,  §  7356. 

55  Rev.  Stats.,  c.  17,  §  17,   [1281];   L.  O.  L.,  §  7359. 
66  McClave  v.  McClave,  60  Neb.  464,  83  N.  W.  668. 

57  Schick  v.  Whitcomb,  68  Neb.  784,  94  N.  W.  1023. 

(598) 


CHAPTER  XXIX-A. 

DOWER  AND  CURTESY. 

§  388a.  Definitions. 

388b.  Dower  in  Mortgaged  Property. 

388c.  Dower  of  Aliens  and  Nonresidents. 

388d.  Property  Subject  to  Dower. 

388e.  Requisites  of  Dower  and  Curtesy. 

388f.  Dower  and  Curtesy — How  Barred. 

388g.  Election  Between  Jointure  and  Dower  and  Devise  and  Dower  or 

Curtesy. 

388h.  Assignment  of  Dower. 

388  i.  Assignment  of  Dower  by  County  Court. 

388j.  Assignment  of  Dower  by  Circuit  Court. 

388k.  Dower  in  Lands  that  have  Enhanced  in  Value. 

3881.  Dower  in  Lands  that  have  Depreciated  in   Value. 

388m.  Dower  in  Lands  not  Capable  of  Division. 

388n.  Damages  for  Withholding  Dower. 

388o.  Incidents  of  Dower. 

388p.  Dower  RecoTered  by  Default  or  Collusion. 

§  388a.    Definitions. 

Dower  is  of  ancient  common-law  origin,1  and  may 
be  defined  as  a  provision  made  by  law  for  the  benefit 
of  the  widow  out  of  the  real  estate  of  which  her  hus- 
band was  seised.2  Dower  in  Oregon  differs  consider- 
ably from  what  it  was  at  common  law,  being  the  use 
during  the  remainder  of  her  life  of  the  one-half  of  the 
estate  whereof  the  husband  was  seised  of  an  estate  of 
inheritance  at  any  time  during  their  marriage,  unless 
she  is  lawfully  barred  thereof.3 

Curtesy,  which  at  common  law  was  a  life  estate  in 
the  wife's  real  estate  when  there  were  children  born 
alive  to  the  parties,  is  made  by  statute  an  estate  iden- 

1  Coke  Litt.  124b. 

2  Schiffen  v.  Pruden,  64  N.  Y.  47;  Dow  v.  Dow,  36  Me.  211. 
«  L.  O.  L.,  S  7286. 

(599) 


§  388a  PKOBATE  AND  ADMINISTRATION.     [Chap.  29a 

tical  in  amount  with  dower,  assigned,  admeasured  and 
barred  the  same  way;  and  as  far  as  practicable  all 
laws  applicable  to  dower  are  applicable  in  like  manner 
and  with  like  effect  to  curtesy.4  There  are  no  sepa- 
rate statutory  provisions  regulating  assignment  of 
curtesy  or  defining  the  various  incidents  connected 
therewith,  and  with  the  few  exceptions  hereafter  noted 
the  law  governing  dower  applies  equally  to  curtesy. 

On  the  death  of  either  husband  or  wife  the  interest 
of  the  one  in  the  estate  of  the  other,  which  up  to  that 
time  was  a  mere  lien  or  charge  on  the  real  estate,  ceases 
to  be  such  charge  or  lien,  and  becomes  at  once  an  estate 
carved  out  of  the  lands  of  the  intestate,  and  exempted 
from  the  payment  of  his  ordinary  unsecured  debts.5 
The  estate  does  not  immediately  vest  in  possession, 
excepting  the  right  of  the  widow  to  occupy  the  dwell- 
ing-house of  the  decedent  for  one  year.6  The  executor 
or  administrator  is  entitled  to  the  control  of  the  prop- 
erty and  the  right  to  the  rents  and  profits  pending  ad- 
ministration for  the  purpose  of  paying  the  debts  and 
charges  of  administration.7  The  right  does  not  attach 
to  any  particular  part  or  portion  of  the  lands,  but  is 
a  general  right  to  the  use  of  the  one-half  of  the  lands 
or  one-half  of  the  rents  and  profits.8 

A  widow  is  not  entitled  to  dower  in  both  lands  of 
which  her  husband  died  seised  and  lands  for  which 
they  were  deeded  in  exchange,  but  may  elect  to  take 
such  estate  in  either.  She  will  be  deemed  to  have 
taken  dower  in  the  lands  received  in  exchange  unless 

*  L.  O.  L.,  §  7315. 

5  David  Adler  &  Sons  Clothing  Co.  v.  Hellman,  55  Neb.  266,  75  N.  W. 
887;  Motley  v.  Motley,  53  Neb.  275,  73  N.  W.  738;  Wylie  v.  Charlton, 
43  Neb.  646,  62  N.  W.  220. 

«  L.  O.  L.,  §  7308. 

1  Leonard  v.  Grant,  8  Or.  276;  Neal  v.  Davis,  53  Or.  424,  99  Pac.  69, 
100  Pac.  212. 

8  Neal  v.  Davis,  supra;  Jackson  v.  O'Rorke,  71  Neb.  418,  98  N.  W. 
1068. 

(600) 


Chap.  29a]  DOWEB  AND  CURTESY.  §  388b 

she  commences  proceedings  to  recover  dower  in  the 
other  lands  within  one  year.8 

§  388b.    Dower  in  mortgaged  property. 

A  widow  is  entitled  to  dower  in  lands  encumbered 
by  a  mortgage  executed  by  her  husband  previous  to 
her  marriage,  or  by  a  purchase  money  mortgage  exe- 
cuted after  her  marriage  and  in  which  she  did  not 
join,  as  against  all  persons  except  the  mortgagee  and 
those  claiming  under  him.  Should  such  mortgages  be 
foreclosed  and  a  surplus  remain  after  their  payment, 
she  is  entitled  to  the  interest  or  income  of  the  one-half 
of  such  surplus  for  her  life.10 

If  the  heir  or  other  person  claiming  under  the  hus- 
band shall  pay  and  satisfy  the  mortgage,  the  amount 
so  paid  shall  be  deducted  from  the  value  of  the  land, 
and  the  widow  shall  have  set  out  for  her,  for  her  dower 
in  the  mortgage  lands,  the  value  of  one-half  of  the 
residue  after  such  deduction.11 

If  the  mortgage  was  given  after  marriage  and  she 
did  not  unite  with  her  husband  in  executing  it,  she  is 
entitled  at  his  decease  to  her  dower  to  the  same  extent 
as  though  the  mortgage  never  existed.12  When  she 
joins  in  the  mortgage  she  releases  her  right  only  as 
to  the  mortgagee  and  his  assigns,  the  same  as  her  hus- 
band releases  his.13  Dower  may  be  assigned  in  mort- 
gaged land,  subject  to  defeasance  by  breach  of  the 
conditions  of  the  mortgage,  and  when  it  is  so  assigned 
she  holds  her  interest  therein  until  default  and  fore- 
closure.14 At  common  law  it  was  held  to  be  the  duty 

»  L.  O.  L.,  §  7287;  Motley  v.  Motley,  53  Neb.  375,  75  N.  W.  738. 

10  L.  O.  L.,  §  7290. 

11  L.  O.  L.,  §  7291. 

12  Gerry  v.  Stimson,  60  Me.  186. 

13  Bell  v.  City  of  New  York,  10  Paige  (N.  Y.),  40;  Young  v.  Tarbell, 
37  Me.  509. 

14  Danforth  v.  Smith,  23  Vt.  247;  Culver  v.  Harper,  27  Ohio  St.  464; 
Tucker  v.  Field,  51  Miss.  191. 

(601) 


§  3880  PiiOBATE  AND  ADMINISTRATION.       [Chap.  29a 

of  the  administrator  to  relieve  the  lands  from  mort- 
gage liens  as  far  as  possible,  for  the  purpose  of  increas- 
ing the  widow's  dower.15  As  in  Oregon  the  power  to 
redeem  real  estate  is  subject  to  the  order  of  the  county 
court  or  judge,  and  the  widow  is  given  a  distributive 
share  in  the  personal  estate,  there  is  nothing  to  be 
gained  from  such  redemption  except  in  special  cases. 
If  a  mortgage  executed  by  the  husband  and  wife  is 
foreclosed  during  coverture,  she  is  entitled  to  a  dower 
interest  in  the  surplus  moneys  arising  from  a  judicial 
sale  under  the  decree  against  her,  which  may  remain 
after  satisfying  the  mortgage  debt  and  the  proper  costs 
incident  to  the  foreclosure,  costs  incurred  in  resisting 
her  right  and  in  litigating  the  claims  of  other  parties 
in  regard  to  the  property  not  to  be  considered.  The 
rule  is  the  same  where  the  husband  died  after  the  sale, 
and  the  surplus  remained  in  his  hands.16  The  wife  is 
always  a  necessary  party  to  the  foreclosure  suit.17 

§  388c.    Dower  of  aliens  and  nonresidents. 

Aliens  are  entitled  to  dower  the  same  as  citizens. 
The  dower  of  a  nonresident  is  limited  to  those  lands 
in  this  state  of  which  her  husband  died  seised,  and  she 
may  recover  it  in  the  same  manner  as  a  resident.18 

15  Mantz  v.  Buchanan,  1  Md.  Ch.  Dec.  202;  Holmes  v.  Holmes,  3 
Paige  (N.  Y.),  363;  Morgan  v.  Sackett,  57  Ind.  580. 

10  Mills  v.  Van  Voorhies,  20  N.  Y.  412 ;  linger  v.  Leiter,  32  Ohio  St. 
210;  Reiff  v.  Horst,  55  Md.  42;  Hawley  v.  Bradford,  9  Paige  (N.  Y.), 
200;  State  Bank  v.  Hinton,  21  Ohio  St.  509.  The  supreme  court  of 
New  York  has  recognized  the  right  of  a  wife  to  have  her  inchoate  right 
of  dower  in  the  surplus  arising  from  a  sale  under  a  decree  of  foreclosure 
during  the  lifetime  of  her  husband  set  out  to  vest  in  possession  at  her 
death.  Denton  v.  Nanny,  8  Barb.  (N.  Y.)  618;  Matthews  v.  Duryee,  45 
Barb.  (N.  Y.)  69. 

17  Ketchum  v.  Shaw,  28  Ohio  St.  503;  Boss  v.  Boardman,  22  Hun 
(N.  Y.),  527;  Mills  v.  Van  Voorhies,  20  N.  Y.  412;  Denton  v.  Nanny, 
8  Barb.  (N.  Y.)  618. 

W  L.  O.  L.,  §  7306. 

(602) 


Chap.  29a]  DOWEB  AND  CURTESY.  §  388d 

Her  rights  are  defeated  by  a  conveyance  by  the  hus- 
band during  coverture.19 

§  388d.    Property  subject  to  dower. 

Dower  attaches  to  all  the  realty  of  the  husband  in 
this  state,  and  to  all  tenements  and  hereditaments 
thereunto  belonging  or  in  any  wise  appertaining,20  in- 
cluding mines  already  opened  and  those  portions  not 
yet  worked,21  to  estates  in  common,22  to  lands  pur- 
chased by  a  partnership,  of  which  her  husband  was  a 
member,  with  partnership  funds,  except  the  partner- 
ship be  insolvent,23  to  lands  held  by  the  husband  under 
the  donation  act,  if  the  required  four  years'  residence 
has  been  completed,  whether  final  proof  has  been  made 
and  certificate  or  patent  issued  or  not,24  to  lands  en- 
tered under  a  land  warrant  and  conveyed  by  the  hus- 
band before  patent  issued,  the  wife  not  joining  in  the 
deed,25  to  lands  conveyed  to  her  by  her  husband  during 
his  lifetime  in  which  she  was  held  to  be  a  trustee  ex 
maleficio  for  the  heirs  because  of  fraud  in  procuring 
the  conveyance,26  to  lands  allotted  to  an  Indian  by 
federal  statute  in  trust  for  an  Indian  allottee  for  a 
term  of  years,  for  the  sole  use  and  benefit  of  such 
allottee,  "or  in  case  of  his  decease  to  his  heirs,  accord- 
is  Thornburn  v.  Doscher,  32  Fed.  811;  Atkins  v.  Atkins,  18  Neb.  474, 
25  N.  W.  724;  Ljgare  v.  Semple,  32  Mich.  438. 

20  Coke  Litt.  32a. 

21  Billings  v.  Taylor,  10  Pick.  (Mass.)  460;  Findlay  v.  Smith,  6  Munf. 
(Va.)   134;   Crouch  v.  Puryear,  1  Rand.   (Va.)   258. 

22  Rank  v.   Hanna,   6   Ind.   20;   Lee  v.  Lindell,  22  Mo.  292;   Den  d. 
Woodhull  v.  Longstreet,  18  N.  J.  L.  405. 

23  Green  T.  Green,  1  Ohio  St.  535;  Dyer  v.  Clark,  5  Met.  (Mass.)  562; 
Willet  v.  Brown,  65  Mo.  138;  Divine  v.  Mitchum,  4  B.  Mon.  (Ky.)  488; 
Campbell  v.  Campbell,  30  N.  J.  Eq.  415. 

'•**  McKay  v.  Freeman,  6  Or.  449;  Love  v.  Love,  8  Or.  23;  Farria  v. 
Hayes,  9  Or.  81. 

25  Purcell  v.  Lang,  108  Iowa,  158,  79  N.  W.  1005. 

26  Parrish  v.  Parrish,  33  Or.  486,  54  Pac.  352. 

(603) 


§  388d  PROBATE  AND  ADMINISTRATION.       [Chap.  29a 

ing  to  the  laws  of  the  state  of  Oregon,"27  to  lands  re- 
covered from  a  fraudulent  grantee  of  the  husband,28  to 
lands  which  her  husband  acquired  after  the  e'xecution 
of  the  will  and  which  were  not  devised  therein,29  to 
such  lapsed  and  void  legacies  as  do  not  pass  into  the 
residuary  estate,  in  which  case  she  is  entitled  to  both 
dower  and  the  provisions  of  the  will,30  and,  if  a  resi- 
dent of  Oregon,  to  lands  aliened  by  her  husband  during 
coverture  when  she  did  not  join  in  the  conveyance.31 
A  judicial  sale  of  the  husband's  lands  during  his 
lifetime  on  an  execution  against  him  alone  does  not 
bar  her  right  of  dower  in  the  lands  sold.32  The  pur- 
chaser takes  subject  to  the  inchoate  right  of  the  wife 
to  dower;33  nor  does  a  sale  by  an  administrator  under 
a  license  of  the  court  for  the  payment  of  the  ordinary 
unsecured  debts  of  the  estate,34  unless  she  expressly 
consents  and  agrees  thereto  and  joins  in  the  convey- 
ance.35 Her  personal  knowledge  of  the  sale,  even 
though  she  was  present  and  heard  the  land  offered, 
the  bids  made  and  the  property  struck  off  to  the 
highest  bidder  without  making  any  objection,  is  no 

27  Beam  v.  United  States,  162  Fed.  260;  Parr  v.  United  States,  153 
Fed.  462. 

28  Campbell  v.  Clark,  2  Doug.  (Mich.)  141. 

29  Hall  v.  Hall,  2  McCord  Eq.   (S.  C.)   269;  City  of  Philadelphia  v. 
Davis,  1  Whart.  (Pa.)  490. 

30  Johnson  v.  Johnson,  32  Minn.  313,  21  N.  W.  725;  Power  v.  Cassidy, 
79  N.  Y.  602 ;  Hand  v.  Marcy,  28  N.  J.  Eq.  59. 

31  L.  O.  L.,  §  7286. 

32  Hanely  v.  Kubli,  46  Or.  632,  74  Pac.  224. 

33  Motley  v.  Motley,  53  Neb.  375,  73  N.  W.  738 ;  Vinson  v.  Gentry,  14 
Ky.  Law  Eep.  804,  21  S.  W.  578;  Grady  v.  McCorkle,  57  Mo.  172;  Porter 
v.  Lazear,  109  U.  S.  84,  3  Sup.  Ct.  Eep.  58;  Laton  v.  Corser,  51  Minn. 
406,  53  N.  W.  717. 

34  House  v.  Fowle,  22  Or.  303,  29  Pac.  890;  Whiteaker  v.  Belt,  25  Or. 
490,  36  Pac.  534;  Kent  v.  Taggart,  68  Ind.  163. 

35  Compton  v.  Pruitt,  88  Ind.  171;  Motley  T.  Motley,  53  Neb.  375,  73 
N.  W.  738. 

(604) 


Chap.  29a]  DOWEB  AND  CUBTESY.  §  388e 

bar  to  her  dower.36  Her  right  takes  precedence  over 
that  of  a  mechanic's  lien.37 

Dower  does  not  attach  to  an  equitable  estate.8* 
Curtesy,  however,  attaches  to  both  legal  and  equitable 
estates,39  and  to  property  held  by  a  trustee  for  the 
wife,  the  rents  and  profits  being  payable  to  her,40  and 
to  property  held  by  a  lessee,  the  right  to  have  the 
estate  set  out,  however,  not  accruing  until  after  the 
termination  of  the  lease.41  It  has  been  held  not  to 
attach  to  an  estate  of  less  than  a  freehold.42 

Neither  dower  nor  curtesy  attach  to  lands  conveyed 
by  both  husband  and  wife  with  intent  to  defraud  credi- 
tors, when  such  lands  are  recovered  by  the  executor 
or  administrator  on  the  application  of  the  creditors, 
the  deed  being  good  as  between  the  parties  to  it,43  nor 
does  dower  attach  to  lands  deeded  to  an  administrator 
which  were  conveyed  by  the  husband  before  marriage 
as  security  for  a  debt,  a  bond  for  reconveyance  being 
taken  and  the  lands  redeemed  by  the  administrator.44 

§  388e.    Requisites  of  dower  and  curtesy. 

The  requisites  of  dower  and  curtesy  in  Oregon  are 
substantially  the  same.  They  are  marriage,  seisin, 

36  House  v.  Fowle,  22  Or.  303,  29  Pac.  890;  Whiteaker  v.  Belt,  25  Or. 
490,  36  Pac.  534. 

37  Bishop  v.  Boyle,  9  Ind.  169;  Shaeffer  v.  Weed,  3  Gilm.  (HI.)  511  j 
Gove  v.  Gather,  23  111.  634. 

38  Whiteaker  v.  Vanschoaick,  5  Or.  113;  Farnum  v.  Loomis,  2  Or.  30. 

39  Gilmore  v.  Burch,  7  Or.  374;  Beam  v.  United  States,  162  Fed.  260. 

40  Lowry's  Lessee  v.  Steele,  4  Ohio  St.  170;  Jackson  d.  Swartwout  v. 
Johnson,  5  Cow.  (N.  Y.)  74;  Sweeney  v.  Montgomery,  85  Ky.  55,  2  S.  W. 
562. 

41  Forbes  v.  Sweesy,  8  Neb.  520. 

42  Hall  v.  Crabb,  56  Neb.  392,  76  N.  W.  865. 

«  Curtis  v.  Price,  12  Ves.  103;  Richardson  v.  Welch,  47  Mich.  309,  11 
N.  W.  172. 

44  Hall  v.  Hall,  70  N.  H.  47,  47  AtL  79;  Pugh  v.  Bell,  2  B.  Mon. 
(Ky.)  125. 

(605) 


§  388f  PBOBATE  AND  ADMINISTRATION.       [Chap.  29a 

and  death  of  the  owner  of  the  estate  of  inheritance.45 
The  marriage  must  have  been  a  valid  one,  or,  if  void- 
able, have  never  been  avoided.46  A  marriage  by  con- 
sent per  verba  de  praesenti  is  sufficient  to  entitle  the 
party  to  the  estate,47  and  so  is  a  common-law  marriage, 
it  appearing  that  the  parties  lived  and  cohabited  to- 
gether as  husband  and  wife,  were  commonly  reputed 
to  be  married  and  held  themselves  out  to  the  public  as 
such.48 

The  decedent  must  have  been  seised  of  an  estate  of 
inheritance  in  the  property  for  his  own  use  and  bene- 
fit.49 If  the  decedent  held  the  land  as  an  executor  or 
trustee  of  an  express  or  resulting  trust,  the  estates  do 
not  attach.50 

§  388f.    Dower  and  curtesy — How  barred. 

A  married  woman  may  bar  her  right  of  dower  in 
any  estate  conveyed  by  her  husband,  or  by  his  guard- 
ian if  he  be  a  minor,  by  joining  in  the  deed  of  con- 
veyance thereto,  or  by  executing  a  separate  deed  with 
or  without  mentioning  barring  of  dower.  Such  sepa- 
rate deed  can  only  be  executed  to  the  grantee  of  the 
husband  or  the  heirs  or  assigns  of  such  grantee.51  Her 
deed  must  be  both  signed  and  acknowledged.52  The 
curtesy  of  the  husband  may  be  barred  by  his  joining 
in  or  executing  a  deed  in  like  manner.53 

45  Stevens  v.  Smith,  4  J.  J.  Marsh.  (Ky.)  64. 

46  l  Greenleaf,  Cruise,  154. 

47  Pearson  v.  Howey,  11  N.  J.  L.  18. 

48  Fenton  v.  Eeid,  4  Johns.  (N.  Y.)  52;  Donnelley  v.  Donnelley's  Heirs, 
8  B.  Mon.  (Ky.)  113. 

49  Atwood  v.  Atwood,  23  Pick.  (Mass.)  283;  Poor  v.  Horton,  15  Barb. 
(N.  Y.)  485;  Prits  v.  Richey,  29  Pa.  71;  2  Bl.  Com.  129. 

50  Tillman  v.  Spann,  68  Ala.  102;  Gage  v.  Ward,  25  Me.  101;  John- 
son v.  Plume,  77  Ind.  166;  Glenn  v.  Clark,  53  Md.  580;  Fontaine  v.  Boats- 
men  Savings  Inst.,  57  Mo.  552. 

81  L.  O.  L.,  §  7298. 

52  Maynard  v.  Davis,  127  Mich.  571,  86  N.  W.  1051. 

53  Besser  v.  Joyce,  9  Or.  310. 

(606) 


Chap.  29a]  DO  WEB  AND  CURTESY.  §  388f 

Dower  may  also  be  barred  by  a  jointure  settled  on 
the  wife  before  her  marriage  with  her  assent,  provided 
the  same  consists  of  a  freehold  estate  in  lands,  for  the 
life  of  the  wife  at  kist,  to  take  effect  in  possession  or 
profits  immediately  on  the  death  of  her  husband.54 
Such  jointure  must  recite  that  it  is  given  expressly  in 
lieu  of  dower,55  and  must  be  assented  to,  if  she  be  of 
the  full  age  of  twenty-one,  by  her  joining  with  her 
father  or  guardian  in  the  conveyance.56  Dower  is  also 
barred  by  an  antenuptial  agreement,  which  must  be 
assented  to  by  the  intended  wife  in  the  same  manner 
as  a  jointure.57  Such  contract  must  strictly  comply 
with  the  statutes.  The  pecuniary  provision  must  be 
made  in  the  agreement  itself;  its  amount  must  be  fixed 
and  certain,  leaving  nothing  to  be  done  by  either  party 
for  its  determination.  Therefore  an  antenuptial  agree- 
ment by  which  the  husband  was  to  provide  for  the 
wife  by  will,  which  agreement  was  complied  with  by 
the  husband,  does  not  bar  the  widow  from  electing  to 
take  under  the  statute.58  The  jointure  or  pecuniary 
provision  is  not  void  as  to  creditors  when  the  value 
of  the  property  is  about  equal  to  the  dower  interest.59 

Dower  is  not  barred  by  a  conveyance  previous  to  the 
marriage,  which  does  not  take  effect,  according  to  its 
terms,  until  the  death  of  the  grantor,  he  still  remain- 
ing in  possession  of  the  property  and  of  its  rents  and 
profits.  Such  instrument  being  testamentary  in  its 
character,  the  husband  is  seised  of  the  property  as 
though  it  had  never  been  executed.60 

M  L.  0.  L.,  §  7299. 

55  Pepper  v.  Thomas,  85  Ky.  539,  4  S.  W.  297. 

56  L.  0.  L.,  §  7300. 

57  L.  O.  L.,  §  7301. 

58  Fellers  v.  Fellers,  54  Neb.  694,  74  N.  W.  1077. 

59  Singree  v.  Welch,  32  Ohio  St.  320. 

eo  Pinkham  v.  Pinkham,  55  Xeb.  729,  77  N.  W.  411;  Hazleton  v.  Reed, 
46  Kan.  73,  26  Pac.  450;  Conrad  v.  Douglas,  59  Minn.  498,  62  N.  W.  673; 
Donald  v.  Nesbit,  89  Ga.  290,  15  S.  E.  367. 

(607) 


§  388f  PROBATE  AND  ADMINISTRATION.       [Chap.  29a 

During  the  existence  of  the  marriage  relation  no 
valid  agreement  can  be  made  between  the  husband  and 
wife  for  the  release  of  dower  or  curtesy,61  or  agreement 
between  them  for  a  division  of  their  lands  by  the  terms 
of  which  certain  property  is  to  be  "exclusively"  the 
property  of  the  husband  and  other  property  "exclu- 
sively" the  property  of  the  wife.62  This  rule  does  not 
bar  either,  if  possessed  of  a  separate  estate,  from  sell- 
ing and  conveying  the  same  to  the  other.  The  law 
makes  a  distinction  between  an  absolute  sale  of  real 
estate  by  husband  to  the  wife,  or  vice  versa,  by  which 
the  grantor  parts  with  the  entire  interest  and  a  release 
or  relinquishment  of  the  statutory  interest  which  the 
surviving  spouse  takes  in  the  lands  of  the  decedent. 
The  conveyance  of  the  lands  is  valid  to  the  same  extent 
as  between  persons  who  are  not  husband  and  wife,  and 
includes  either  dower  or  curtesy.63 

Form  No.  166a. 
JOINTURE  BARRING  DOWER. 

This  indenture,  made  this day  of ,  19 — ,  by  and  between 

A.  B.,  of county,  Oregon,  an  unmarried  man,  and  C.  Dv  of  - 

county,  Oregon,  an  unmarried  woman  of  full  age,  witnesseth:  That 
whereas,  said  parties  intend  to  be  joined  in  the  bonds  of  matrimony, 
and  are  desirous  of  executing  a  conveyance  by  which  said  C.  D.  becomes 
barred  of  any  right  of  dower  which  she  may,  after  said  contemplated 
marriage,  acquire  in  the  lands  of  the  said  A.  B.,  now,  therefore,  in  con- 
sideration of  said  intended  marriage,  said  A.  B.  hereby  grants,  bargains, 
and  conveys  unto  the  said  C.  D.  the  following  described  real  estate 
[describe  real  estate],  together  with  all  the  tenements  and  hereditaments 
thereunto  belonging  or  in  any  wise  appertaining,  to  have  and  to  hold  the 
same  unto  the  said  C.  D.  for  and  during  her  natural  life,  possession  of 
said  premises  by  said  C.  D.  to  be  given  at  the  marriage  of  said  A.  B., 
and  said  C.  D.;  and  the  said  A.  B.,  for  himself,  his  heirs,  executors,  and 

61  House  v.  Fowle,  20  Or.  165,  25  Pac.  376;  McCrary  v.  Biggers,  *t> 
Or.  465,  81  Pac.  356. 

62  Potter  v.  Potter,  43  Or.  149,  72  Pac.  702. 

63  Jenkins  v.  Hall,  26  Or.  79,  37  Pae.  62;  L.  O.  L.,  §  7306. 

(608) 


Chap.  29a]      .      DOWEE  AND  CUKTESY.'  §'3~8~8g 

assigns,  hereby  covenants  and  agrees  to  and  with 'the  said-C.  D.  that  he 
is  lawfully  seised  of  the  above-described  premises  in  fee  simple,  that 
they  are  free  from  all  liens  and  encumbrances,  and  that  he  has  full 
right  and  authority  to  convey  the  same;  and  he  further  covenants  and 
agrees  to  warrant  said  premises  against  the  demands  of  all  persons 
whatsoever. 

And  the  said  C.  D.,  for  and  in  consideration  of  said  marriage  and 
the  execution  and  delivery  of  this  instrument  by  the  said  A.  B.,  hereby 
expressly  assents  and  agrees  to  receive  said  premises  in  lieu  of  dower  in 
all  lands  of  which  the  said  A.  B.  may  be  seised  of  all  estate  of  inheritance 
at  any  time  during  their  marriage. 

In  witness  whereof,  the  parties  hereto  have  hereunto  set  their  hands 
the  day  and  year  first  above  written. 

(Signed)     A.  B. 
C.  D. 
Witness: 
G.  H. 
L.  M. 

State  of  Oregon, 
County, — ss. 

On  this day  of ,  19 — ,  before  me,  a  notary  public  duly 

commissioned  at  and  within  the  county  aforesaid,  personally  came  A.  B. 
and  C.  D.,  to  me  known  to  be  the  persons  described  in  and  who  executed 
the  foregoing  instrument,  and  acknowledged  the  same  to  be  their  free 
act  and  deed,  and  executed  for  the  purposes  therein  mentioned. 

Witness  my  hand  and  official  seal. 

(Seal)  (Signed)     J.  C.  C., 

Notary  Public. 

§  388g.    Election   between   jointure   and   dower,   or 
devise  and  dower  or  curtesy. 

If  the  jointure  or  pecuniary  provision  be  made  be- 
fore marriage  and  without  the  consent  of  the  intended 
wife,  or  if  it  be  made  after  marriage,  she  shall  make 
her  'election  after  the  death  of  the  husband  whether 
she  will  take  such  jointure  or  pecuniary  provision  or 
be  endowed  with  the  lands  of  her  husband,  but  she 
shall  not  be  entitled  to  both.64  At  common  law  the 

&<  L.  O.  L.,  §  T'302 ;  Kunyan  v.  Winstock,  55  Or.  203,  105  Pac.  895. 

39— Pro.  Ad.  (609) 


§  388h  PBOBATE  AND  ADMINISTRATION.       [Chap.  29a 

widow  was  entitled  to  both  dower  and  a  devise,  or 
pecuniary  provisions  in  the  will  of  her  husband,  unless 
such  will  expressly  declared  to  the  contrary.65  Under 
the  Oregon  statutes  she  is  not  entitled  to  both,  but 
must  make  her  election  which  she  will  take,  unless  the 
will  plainly  shows  an  intention  to  give  her  both.66  A 
devise  or  bequest,  in  order  to  be  in  lieu  of  dower,  must 
be  made  direct  to  the  widow  or  for  her  use  and  benefit, 
freed  from  any  trust  for  other  purposes,67  nor  will  a 
charge  on  the  estate  for  the  board,  lodging,  clothing 
and  all  desirable  comforts  for  a  wife  in  her  declining 
years  be  considered  as  a  bequest  in  lieu  of  dower.68 

§  388h.    Assignment  of  dower. 

Upon  the  death  of  the  husband  the  right  of  the 
widow  to  dower  becomes  a  vested  one,  but  until  for- 
mally set  apart  to  her,  she  has  no  right  to  an  undivided 
one-half  or  the  use  of  any  particular  tract  or  portion,6* 
excepting  only  the  right  to  the  occupancy  of  the  dwell- 
ing-house.70 She  may  continue  to  occupy  the  lands 
with  the  children,  or  other  heirs  of  the  deceased,  or 
may  receive  one-half  of  the  rents,  issues  and  profits 
therefrom  so  long  as  the  heirs  or  others  interested  do 
not  object,  without  having  her  dower  assigned.71  She 
may  also,  by  agreement  with  the  heirs  and  personal 
representatives,  receive  a  gross  sum  from  the  estate 
equal  to  the  present  value  of  her  life  interest  or  estate, 
interest  being  computed  at  the  legal  rate,72  or  an  agree- 

65  4  Kent,  Com.,  58;   In  re  Gotzian,  34=  Minn.  159,  24  N.  W.  920  j 
Atkinson  v.  Staig,  13  R.  I.  725. 

66  L.  O.  L.,  §  7303. 

67  Rittgers  v.  Rittgers,  52  Iowa,  218,  9  N.  W.  188. 

68  Bentley  v.  Bentley,  112  Iowa,  625,  84  N.  W.  676.     As  to  method  of 
election,  see  §  431,  post. 

69  Neal  v.  Davis,  53  Or.  424,  100  Pae.  212. 

70  L.  O.  L.,  §  7308;  Aikin  v.  Aikin,  12  Or.  203,  6  Pac.  682. 

71  L.  O.  L.,  §  7297. 

72  Hale  v.  James,  €  Johns.  Ch.  (N.  Y.)  258;  Williams'  Case,  3  Bland 
(Md.),  186. 

(610). 


Chap.  29a]  DOWEB  AND  CUKTESY.  §  3881 

ment  may  be  made  with  the  heirs  for  the  payment, 
properly  secured,  of  the  one-half  of  the  income  during 
her  lifetime.7*  When  the  value  of  the  income  for  one 
year  has  been  agreed  upon,  the  present  value  can  be 
figured  from  mortality  and  interest  tables.  Find  from 
the  mortality  table  her  life  expectancy,  then  from  the 
interest  tables  the  present  value  of  an  annuity  of  one 
dollar  per  year  during  such  expectancy ;  multiply  this 
amount  by  the  value  of  the  income  for  one  year,  and  the 
result  is  the  present  value  of  her  dower. 

§  388L    Assignment  of  dower  by  county  court. 

An  action  for  recovery  of  dower  or  curtesy  must  be 
brought  within  ten  years  from  the  date  of  the  death 
of  the  deceased.14  When  the  right  to  the  estate  is  not 
disputed  by  the  heirs,  or  devisees  or  any  persons  claim- 
ing under  them,  it  may  be  assigned,  in  whatever  coun- 
ties the  lands  may  lie,  by  the  county  court  of  the  county 
in  which  the  estate  is  settled,  on  the  application  of 
the  surviving  spouse  or  other  person  interested  in  the 
estate.75  This  statute  is  a  limitation  on  the  powers 
of  the  county  court  over  the  settlement  of  the  estates 
of  deceased  persons  given  it  by  the  constitution,  and 
in  order  to  oust  such  court  of  jurisdiction,  objections 
must  be  filed  setting  out  facts  which,  if  established, 
would  defeat  the  right  of  the  petitioner  to  recover.76 

Notice  of  the  hearing  on  the  petition  is  required  to 
be  given  to  the  heirs,  devisees  or  other  persons  in  such 
manner  as  the  court  may  direct.77 

If  objections  are  filed,  the  court  has  no  jurisdiction 
to  proceed  further,  and  the  proceedings  should  be  dis- 
missed without  prejudice.  If  there  are  none,  the  court 

73  Lenfers  v.  Henke,  73  HI.  405. 

74  Laws  1913,  p.  211. 

75  L.  0.  L.,  §  7293. 

76  Guthman  v.  Guthman,  18  Neb.  104,  24  N.  W.  435;  demons  v.  Heli- 
han,  52  Neb.  287,  72  N.  W.  270. 

77  L.  0.  L.,  §  7293. 

(611) 


§3881  PROBATE  AND  ADMINISTRATION.       [Chap.  29a 

may  enter  an  order  awarding  dower  and  for  the  pur- 
pose of  assigning  the  same  direct  that  a  warrant  issue 
to  three  discreet  and  disinterested  persons,  authorizing 
and  requiring  them  to  set  out  the  dower  by  metes  and 
bounds,  when  it  can  be  done  without  injury  to  the 
whole  estate.78 

The  commissioners  shall  be  sworn  by  a  judge  of  any 
court  of  record,  or  a  justice  of  the  peace,  faithfully 
to  discharge  their  duties,  and  shall  as  soon  as  may  be 
set  off  the  dower  according  to  the  command  of  such 
warrant,  and  make  return  of  their  doings,  with  an 
account  of  their  charges  and  expenses  in  writing  to 
the  county  court;  and  the  same  being  accepted  and 
recorded  and  an  attested  copy  thereof  filed  in  the  office 
of  the  county  clerk  where  the  lands  are  situated,  the 
dower  shall  remain  fixed  and  certain,  unless  such  con- 
firmation be  set  aside  and  reversed.  Costs  on  appeal 
and  one-half  of  the  costs  of  such  proceeding  shall  be 
paid  by  the  widow,  and  the  other  half  by  the  adverse 
party.79 

Form  No.  166b. 

PETITION  FOR  ASSIGNMENT  OF  DOWER  BY  WIDOW— COUNTY 

COURT. 

[Title  of  Cause  and  Court.]  , 

Your  petitioner,  C.  B.,  respectfully  represents  unto  the  court  that  on 

the day  of  ,  19 — ,  at  the  city  of  ,  in  the  state  of 

Oregon,  she  was  married  to  said  A.  B.  ;tthat  on  or  about  the day 

of  ,  19 — ,  at  the  city  of ,  in  said  state,  said  A,  B.,  then 

being   a   resident   of   said  : county,   departed    this  life   intestate 

[if  .decedent  left  a  will,  say,  "leaving  a  last  will  and  testament,  which 

was  duly  admitted  to'^robate  in  the  county  court  of  said county 

On  the  day  of  ,  19 — ;  that  your  petitioner  hereby  re- 
nounces the  provisions  made  for  her  in  said  will,  and  elects  to  be  endowed 
of  the  estate  of  which  said  A.  B.  died  seised"] ;  that  said  A.  B.  was1 
seised  of  an  estate  of  inheritance  in  the  following  described  real  estate 
[describe  real  estate]  ;  that  your  petitioner  is  the  widow  of  said  A.  B., 

78  L.  O.  L.,  §  7294. 

79  L.  O.  L.,  §  7295. 

(612),!, 


Chap.  29a]  DOWEB  AND  CUBTESY.  §  3881 

and  that  her  right  of  dower  in  said  real  estate  has  not  been  barred  by 
any  act  or  omission  on  her  part,  either  before  or  after  the  death  of  her 
said  husband,  and  that  she  is  therefore  entitled  to  her  dower  interest 
therein;  that  said  dower  right  in  said  real  estate  has  not  been  disputed 
by  any  of  the  heirs  [devisees]  of  said  A.  B.,  nor  by  any  other  persons 
claiming  through  or  under  them;  that  the  following  persons  are  inter- 
ested in  said  real  estate  [give  names  and  places  of  residence,  as  far  as 
known,  of  heirs  or  devisees  or  other  persons  interested]. 

Your  petitioner  therefore  prays  that  dower  in  said  real  estate  may  b« 
assigned  to  her,  and  for  such  other  relief  as  may  be  just  and  equitable. 

(Signed)     C.  B. 

Dated  at ,  Oregon,  this day  of ;  19 — . 

[Add  verification,  Form  No.  5.] 

i 

Form  No.  I66c. 

NOTICE  OF  PENDENCY  OF  PETITION  FOB  DOWER— COUNTT 

COURT. 

State  of  Oregon, 
County ,- 


To  the  Heirs  at  Law,  Devisees,  and  All  Persons  Interested  in  the  Estate 
of  A.  B.,  Deceased: 

You   are  hereby   notified   that   on   the   day   of  ,    19 — , 

C.  B.  filed  her  petition  in  the  county  court  of  said  county,  duly  verified, 
praying  for  the  assignment  to  her  of  dower  in  the  following  described 
premises:  [Describe  premises  as  in  petition.]  You  are  notified  to  appear 

at  the  county  court  room  in  the  city  of ,  said  county,  on  the 

day  of  ,  19 — ,  and  show  cause,  if  any  there  be,  why  the  prayer1 

of  the  said  petitioner  should  not  be  granted.  It  is  further  ordered  that 
a  copy  of  this  petition  be  served  on  all  parties  interested  in  said  lands 
by  publication  thereof  once  each  week  for  three  successive  weeks  in  the 
,  a  newspaper  printed  and  published  in  said  county. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal' 
of  said  court  this day  of ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge.    • 
Form  No.  166d. 

ANSWER  SETTING  UP  DEFENSE  TO  DOWER. 
[Title  of  Cause  and  Court.] 

Comes  now  E.  F.,  and  for  answer  to  the  petition  of  said  C.  B.,  pray- 
ing for  the  assignment  to  her  of  dower  in  the  following  described  lands, 

(613) 


§  388J  PBOBATE  AND  ADMINISTRATION.       [Chap.  29a 

[describe  lands  as  in  petition],  alleges  that  said  C.  B.  is  not  the  widow 

of  said  A.  B.,  deceased;   that  on  the  day  of  ,  19 — ,  in 

the  county  court  of  -         -  county,  ,  in  a  certain  case  in  which 

said  A.  B.  was  plaintiff  and  C.  B.  defendant,  said  A.  B.  was  granted 
a  decree  of  divorce  from  said  C.  B.,  and  that  said  decree  has  never  been 
reversed  or  modified,  and  is  now  in  full  force  and  effect,  and  was  granted 
for  the  cause  of  adultery  committed  by  said  C.  B. ;  [that  said  E.  F. 

purchased  said  lands  above  described  on  the day  of  —      — ,  19 — , 

at  a  judicial  sale  on  a  judgment  rendered  in  the  circuit  court  of  - 
county,   Oregon,   in   an   action   wherein  G.   H.   was   plaintiff   and   A.   B. 
was  defendant,  and  that,  since  the  purchase  of  said  property,  the  same 
has  been  greatly  enhanced  in  value  on  account  of  the  erection  by  said 
E.  F.  of  a  brick  block  of  the  value  of  $10,000] ;   [that  on  the  - 

day  of  ,   19 — ,  said   C.  B.,  C.  D.,  administrator  of  said   estate, 

G.  H.,  L.  M.,  and  your  petitioner,  sole  heirs  of  said  A.  B.,  entered  into 
a  contract  and  agreement  with  said  C.  B.  by  the  terms  of  which  said 
G.  H.,  L.  M.,  and  E'.  F.  purchased  of  said  C.  B.,  for  the  sum  of  $2,000, 
her  dower  and  other  interest  in  said  estate]. 

Said  E.  F.    therefore  prays  that  this  proceeding  may  be  dismissed. 

Dated  this  day  of  ,  19 — . 

(Signed)      E.  F. 

[Add  verification,  Form  No.  5.] 

§  388j.    Assignment  of  dower  by  circuit  court. 

The  general  equity  jurisdiction  of  the  circuit  court 
gives  it  the  power  to  assign  dower  in  all  cases,  irre- 
spective of  the  statute  vesting  such  power  to  a  limited 
extent  in  the  county  court,80  and  whenever  the  right 
is  disputed  its  jurisdiction  is  exclusive.81  The  action 
may  be  brought  by  the  widow  or  an  interested  party, 
making  all  parties  claiming  title,  including  grantees 
of  the  heirs  or  devisees,  defendants,  or  against  the 
grantees  of  the  heirs  alone.  The  petition  need  not 
set  up  that  the  right  to  dower  is  denied  by  the  defend- 
ants.82 The  practice  regarding  appointment  of  com- 
missioners, report  and  confirmation  and  filing  same  in 

80  Baer  v.  Ballingall,  37  Or.  422,  61  Pac.  825. 

81  Baer  v.  Ballingall,  supra. 

82  McKay  v.  Freeman,  6  Or.  449. 

(614) 


Chap.  29a]  DO  WEB  AND  CURTESY.  §  388k 

the  office  of  the  county  clerk  where  the  lands  lie  is 
usually  the  same  as  in  the  county  court. 

Dower  may  also  be  assigned  in  an  action  for  parti- 
tion, provided  the  widow  expressly  assents.  The  in- 
terest is  not  sufficient  to  authorize  her  to  bring  such 
action  and  compel  a  sale  of  the  interests  of  the  heirs.83 

§  388k.    Dower  in  lands  that  have  enhanced  in  value. 

The  widow  is  entitled  to  dower  in  lands  that  were 
aliened  by  the  husband  without  her  having  joined  in 
the  conveyance,  and  which  have  enhanced  in  value 
since  their  alienation  according  to  their  value  at  the 
time  of  the  transfer.84  The  term  "enhanced  in  value" 
as  used  in  the  above  section  means  an  increase  in  value 
caused  by  the  erection  of  buildings  or  the  making  of 
improvements,  and  does  not  cover  an  advance  in  values 
owing  to  extrinsic  causes,  or  common  to  all  tracts  simi- 
larly located.85  The  date  of  the  alienation  of  the  prop- 
erty is  determined  by  the  date  of  the  deed,  or  if  sold 
under  judicial  proceedings,  by  the  date  of  the  judg- 
ment, if  in  a  court  of  law,  or  of  confirmation,  if  in 
equity.86 

In  determining  the  value  of  the  dower  the  value  of 
the  property  is  fixed  as  of  the  date  of  the  assignment 
and  the  value  of  improvements  placed  thereon  since 
the  date  of  the  transfer  deducted.  The  widow  is  en- 
titled to  the  present  value  of  the  use  of  the  one-half 
of  the  resulting  amount.87  Repairs  which  merely  keep 
the  property  in  about  the  same  condition  as  it  was  in 
when  the  transfer  was  made  are  not  included.88 

83  Hurste  v.  Hotaling,  20  Neb.  178,  29  N.  W.  299;  Coles  v.  Coles,  15 
Johns.  (X.  Y.)  319;  Woods  v.  Clute,  1  Sand.  Ch.  (N.  Y.)  201. 

84  L.   0.  L.,   §  7292. 

85  Thorburn  v.  Doseher,  32  Fed.  812. 

8«  Butler  v.  Fitzgerald,  43  Neb.  192,  61  N.  W.  640 ;  Scheffer  v.  Weed, 
I  Gilm.  (111.)  511;  Hale  v.  James,  6  Johns.  Ch.  (N.  Y.)  258. 

87  Butler  v.  Fitzgerald,  43  Neb.  192,  61  N.  W.  640;  Allen  v.  McCoj, 
t  Ohio  St.  418;  Summers  v.  Babb,  13  111.  483. 

W  Walsh  v.  Wilson,  131  Mass.  535. 

(615) 


§  388m          PBOBATE  AND  ADMINISTRATION.     [Chap.  29a 

§  3881.    Dower  in  lands  that  have  depreciated  in 
value. 

^  Where  property  depreciates  in  value  after  aliena- 
tion, from  natural  causes,  negligence  or  the  voluntary 
act  of  the  alienee,  a  proportion  of  the  loss  falls  on  the 
widow  if  she  asks  to  have  dower  assigned  therein.*9 
If  the  lands  were  not  aliened  during  the  life  of  the 
husband  and  the  depreciation  is  caused  by  the  loss  or 
destruction  of  the  improvements  by  fire,  and  the  insur- 
ance money  has  been  received  by  the  personal  repre- 
sentative, heirs  or  devisees,  she  is  entitled  to  the  bene- 
fit of  a  share  of  such  amount,  the  value  of  the  property 
being  treated  as  of  the  date  of  the  husband's  death,90 

§  388m.  Dower  in  property  not  capable  of  division. 
It  is  not  necessary  that  the  commissioners  set  apart 
any  separate  tract  of  land  which  is  to  be  the  property 
of  the  widow  during  her  lifetime.  Whenever  the  es- 
tate consists  of  a  mill  or  other  tenements  which  cannot 
be  divided  without  damage  to  the  whole,  and  in  all 
cases  where  it  is  impracticable  to  divide  the  estate  by 
metes  and  bounds,  dower  may  be  assigned  of  half  of 
the  rents,  issues  and  profits  to  be  had  and  received  by 
the  widow  as  a  tenant  in  common.91 

Form  No.  166e. 
PETITION  FOB  ASSIGNMENT  OF  DOWEE— CIRCUIT   COURT. 

[Title  of  Cause  and  Court.] 

The   plaintiff  complains  of  the   defendants,   and   for  cause   of  action 

alleges,  that  on  the  -        -  day  of  ,  19—,  at  the  city  of  - 

in  said  county,  plaintiff  was  married  to  A.  B.,  and  that  afterward,  and 
on  or  about  the  day  of  ,  19—,  said  A.  B.  departed  this 

89  Hale  v.  James,  6  Johns.  Ch.   (N.  Y.)   258;  Thompson  v.  Morrow, 
5   Ser£.  &  R.    (Pa.)    289;   Powell  v.  Bronson  &  Brimfield  Mfg.   Co.,   2 
Mason,  347. 

90  Campbell"  v.  Murphy,  55  N.  C.  357. 

91  L.  O.  L.,  S  7296. 


Chap.  29a]  DOWER  AND  CUBTESY.  §<388m 

life  at  his  residence,  in  said  county  of  [intestate],  leaving  a  last 

will  and  testament,  which  was  duly  admitted  to  probate  in  the  county 

court  of  said  county  on  the  day  of  ,  19 — ;   that  on  the 

day  of ,  19 — ,  plaintiff  filed  in  said  county  court  her  waiver. 

of  the  provisions  made  for  her  in  the  will  of  the  said  A.  B.,  and  elected 
to  take  her  dower  interest  in  said  estate. 

(2)  That   E.   F.   and  G.   H.   are   the  children   and   only  heirs   at  law 
of  the  said  A.  B. 

(3)  That   said   A.  B.,   during  the  time   of  said  marriage,  was  seised 
in   fee  simple   of  the  following   described   real   estate,  to  wit    [describe 

premises],  situated  in  county,  Oregon,  and  that  defendant  I.  J. 

now  claims   said   premises  by  virtue   of  a   deed   executed  and   delivered 

by  the  said  A.  B.  to  the  said  I.  J.  on  the  day  of  ,  19 — , 

and  which  said  deed  was  not  signed  or  acknowledged  by  this  plaintiff. 

(4)  That  plaintiff,   by  reason   of  said   marriage,  upon   the   death   of 
the  said  A.  B.,  became  entitled  to  dower  in  the  lands  above  described, 
which  dower  has  never  been  assigned  to  her,  nor  has  she  received  any 
equivalent  therefor,  or  released  the  same. 

Plaintiff  therefore  prays  that  she  may  recover  dower  in  the  premises 
above  described,  and  for  such  other  relief  as  equity  may  require. 

(Signed)     C.  B., 
By  G.  G.  M.,  Her  Attorney. 
[Add  verification,  Form  No.  8.] 

Form  No.  166f. 

PETITION  BY  HEIR  FOR  ASSIGNMENT  OF  DOWER. 
In  the  Circuit  Court  of  County,  Oregon. 

L.  B., 

Plaintiff, 
vs. 

C.  B.,  8.  D.,  E.  F.?  and  G.  H., 

Defendants. 

The  plaintiff  complains  of  the  defendants,   and   for  cause  of  action 

alleges,  that  on  the  day  of  ,  19—,  A.  B.  and  C.  B.,  the 

father  and  mother  of  plaintiff,  were  married  at  the  city  of  -,  in 

county,    state    of    ,    and    that    afterward,   on   the   

day  of  ,  19 — ,  at  his  residence  in  the  county  of  and  state 

of  Oregon,  said  A.  B.  died  intestate,  leaving  his  widow  and  S.  D.,  D.  F., 
and  G.  H.,  his  children,  his  only  heirs  at  law. 

(617) 


§  388m  PROBATE  AND  ADMINISTRATION.     [Chap.  29a 

(2)  Said  A.  B.  died  seised  in  fee  simple  of  the  following  described 
real  estate,  situated  in  county,  Oregon.     [Describe  real  estate.] 

(3)  Said  C.  B.,  by  virtue  of  said  marriage,  upon  the  death  of  the 
said  A.  B.,  became  entitled  to  dower  in  the  above-described  lands,  which 
dower  has  never  been  assigned  to  her,  nor  has  she  received  an  equivalent 
therefor,  or  released  the  same. 

(4)  That   plaintiff  has  purchased   the  interest   of  the   other  heirs  in 
said  above-described  premises  subject  to  the  dower  of  said  C.  B.,  and  is 
compelled  to  encumber  the  same  and  have  said  dower  assigned. 

The  plaintiff  therefore  prays  that  the  said  C.  B.  may  be  assigned 
her  dower  in  the  premises  above  described,  and  for  such  other  relief 
as  justice  may  require. 

(Signed)     L.  B., 
By  G.  G.  M.,  His  Attorney. 
[Add  verification,  Form  No.  5.] 

Form  No.  166g. 

DECREE  FOB  DOWER— COUNTY  COURT. 
[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this    cause    came  on  for 

hearing  upon  the  petition  of  C.  B.  and  the  answers  of  E.  F.  and  G.  H., 
and  the  evidence,  and  was  submitted  to  the  court,  on  consideration 
whereof  the  court  finds  that  A.  B.,  in  his  lifetime,  was  seised  of  all 
estate  of  inheritance  of  the  following  described  real  estate,  to  wit 
[describe  property],  and  that  the  plaintiff  is  the  widow  of  the  said  A.  B., 
and  is  entitled  to  dower  in  said  premises,  and  to  have  the  same  assigned. 
It  is  therefore  considered  by  the  court  that  the  said  petitioner  be 
endowed  of  the  one-third  part  of  the  above-described  premises  as  her 
dower  therein  as  the  widow  of  the  said  A.  B.,  and  that  C.  V.,  B.  N., 
and  M.  H.,  of  said  county,  be  and  hereby  are  appointed  by  the  court 
to  assign  said  dower  to  said  plaintiff  according  to  law,  and  report  said 
assignment  of  dower  to  this  court  without  delay. 

(Signed)     J.  K., 
County  Judge. 

(618) 


Chap.  29a]  DOWEB  AND  CUBTESY.  §  388m 

Form  No.  166h. 

WARRANT  TO  COMMISSIONERS. 
State  of  Oregon, 


County, — ss. 


To  C.  F.,  B.  N.,  and  M.  H.,  of  Said  County: 

Whereas,  C.  B.  filed  her  petition  in  the  county  court  of county, 

Oregon,  praying  for  the  assignment  to  her  of  dower  in  the  following 
described  premises  [describe  property],  and,  after  due  notice  by  personal 
service  of  an  order  to  show  cause  upon  all  the  parties  named  therein, 
a  hearing  was  had  thereon,  and  the  court  having  found  from  the  evi- 
dence that  the  petitioner  is  the  widow  of  the  said  A.  B.,  that  he  died 
seised  of  an  estate  of  inheritance  in  the  land  above  described,  and 
that  the  petitioner  is  entitled  to  dower  in  the  same,  you  are  hereby 
appointed  commissioners  to  admeasure  the  dower  of  the  said  petitioner 
in  said  above-described  estate  by  setting  off  the  same  by  metes  and 
bounds,  if  it  can  be  done  without  injury  to  the  whole  estate.  If  the 
premise?  eannot  be  divided  without  damage  to  the  whole  estate,  you 
will  assign  the  rents,  issues,  and  profits  of  said  estate  to  be  had  and 
received  by  the  widow  as  tenant  in  common  with  the  owners  of  the 
said  estate. 

You  will  give  due  notice  to  all  parties  interested  in  said  estate,  to 
wit  [give  names  of  parties  interested],  of  the  time  and  place  for  the 
admeasurement  of  said  dower,  and  will  admeasure  the  same,  and  make 
due  return  of  your  proceedings  with  all  convenient  speed. 

Form  No.  166i. 
OATH  OF  COMMISSIONERS  TO  SET  OFF  DOWER. 

We  and  each  of  us  do  solemnly  swear  that  we  will  faithfully  dis- 
charge the  duties  devolving  upon  us  as  commissioners,  appointed  by 

the  county  court  of  county,  Nebraska,  to  set  off  the  dower  of 

C.  B.  in  the  lands  of  which  her  late  husband,  A.  B.,  died  seised  of  all 
estate  of  inheritance. 

(Signed)  C.  F. 
B.  N. 
M.  H. 

Subscribed  in  my  presence  and  sworn  to  before  me  this  day 

Of ,  19—- 

(Signed)     J.  H.  W., 
Justice  of  the  Peace. 

(619) 


§  388m  PBOBATE  AND  ADMINISTRATION.     [CHap.  29a 

Form  No.  166j. 

REPORT  OF  COMMISSIONERS  ON  ASSIGNMENT  OF  DOWER. 
[Title  of  Cause  and  Court.] 

We,  the  undersigned,  duly  appointed  by  an  order  of  said  court  to 
assign  dower  to  C.  B.,  widow  of  said  A.  B.,  respectfully  report  that, 
having  first  taken  the  oath  required  by  law,  and  which  is  hereto  attached, 
marked  "Ex.  A,"  we  gave  personal  notice  to  all  the  persons  named  in  the 

petition  filed  in  this  proceeding  that,  on  the day  of ,  19 — , 

we  would  meet  to  assign  said  dower. 

That  on  said  day  we  met  at  the  premises  described  in  said  order, 
to  wit  [describe  as  in  the  decree],*  and  caused  a  survey  to  be  made  of 

•  the  same  in  the  presence  of  the  parties  interested,  and  in  their  presence 

•  we  admeasured  and  laid  off  to  said  widow  one-third  of  the  said  premises, 
•88   follows'  [describe   portion   assigned   to   widow],   and    designated   the 
'  same   by  monuments.     [If   land   cannot   be   divided,   follow   to   *,   then 
' insert:     That  said  estate  consists  of  a  business  block  [state  what  it  con- 
sists of],  and '  cannot  be   divided  by  metes   and  bounds.     We  therefore 
assigned  to  the  said  C.  B.  one-third  of  the  rents,  issues  and  profits  of 
said  estate,  to  be  had  and  received  by  her  as  tenant  in  common  with  the 
owners  of  said  estate.] 

Dated  this '—  day  of  ,19 — . 

(Signed)      E.  F. 
G.  H. 
I.  J. 
Form  No.  166k. 

ORDER  CONFIRMING  ASSIGNMENT  OF  DOWER. 

[Title  of  Cause  and  Court.] 

Now, 'on  this —  day  of  ,  19—,  this  cause  came  on  for 

hearing  upon  the  report  of  the  commissioners  appointed  by  the  court 
to  make  an  assignment  of  dower  from  said  estate  to  C.  B.,  widow  of 
said  A.  B.  Upon  consideration  whereof,  the  court  finds  that  said  as- 
signment and  proceedings  have  in  all  respects  been  made  in  conformity 
to  law,  and  the  same  are  hereby  approved  and  confirmed. 

It  is  therefore  ordered  that  the  said  C.  B.  have  use  and  possession  of 
the  lands  so  assigned  her  during  her  life,  said  lands  being  described 
as  follows :  [Describe  property  as  in  decree.] 

Dated  this  — — —  day  of ,  19—. 

(Signed)     J.  K., 
,»-  County  Judge. 

(620) 


Chap.  29a]  DOWEB  AND  CUETEST.          §§  388n,  388o 

§  388n.    Damages  for  withholding  dower. 

Whenever  a  widow  recovers  her  dower  in  lands  of 
which  her  husband  died  seised,  she  is  entitled  to  dam- 
ages for  withholding  the  same,  which  are  fixed  by  the 
statute  at  one-half  of  the  annual  value  of  the  mesne 
profits  of  the  lands  in  which  she  shall  recover  dower, 
not  including  the  use  of  permanent  improvements 
made  after  the  death  of  the  husband  by  his  heirs,  or 
by  any  other  person  claiming  title  to  such  lands,  to  be 
estimated  in  a  suit  against  the  heirs  of  her  husband 
from  the  time  of  his  death,  and  in  suits  against  other 
persons  from  the  time  of  demanding  her  dower  of  such 
persons.92 

When  a  widow  shall  recover  her  dower  in  any  lands 
aliened  by  the  heir  of  her  husband,  she  shall  be  entitled 
to  recover  of  such  heir,  in  a  civil  action,  her  damages 
for  withholding  such  dower  from  the  time  of  the  death 
of  the  husband  to  the  time  of  the  alienation  by  the 
heir,  not  exceeding  six  years  in  the  whole;  and  the 
amount  which  she  shall  be  entitled  to  recover  from 
such  heir  shall  be  deducted  from  the  amount  she  would 
otherwise  be  entitled  to  recover  from  such  grantee,  and 
any  amount  recovered  as  damages  from  the  grantee 
shall  be  deducted  from  the  sum  she  would  otherwise 
be  entitled  to  recover  from  such  heir.93 

§  388o.    Incidents  of  dower. 

When  a  widow  accepts  an  assignment  of  dower  in 
her  husband's  lands,  it  is  a  bar  to  any  further  claim 
for  dower  against  the  grantee  of  the  husband,  his  gran- 
tee, or  the  grantee  of  the  heir,  unless  she  shall  have 
been  lawfully  evicted  from  the  lands  so  assigned.94 

The  estate  so  assigned  to  the  widow  becomes  her 
separate  property.  It  may  be  sold  or  assigned  by  her 
and  subjected  to  her  debts  and  sold  on  execution.95 

»2  L.  0.  L.,  §§  7309,  7310,  7311. 

»3  L.  O.  L.,  §  7312. 

94  L.  0.  L.,  §  7313. 

»5  Baer  v.    Ballingall,  37  Or.  424,  61  Pac.  802. 

(621) 


§  388p  PROBATE  AND  ADMINISTRATION.       [Chap.  29a 

The  widow  must  keep  the  houses  and  fences  in  good 
repair,  and  is  liable  to  the  person  having  next  imme- 
diate inheritance  therein  for  waste.9*  She  may  cut 
wood  and  timber  for  ordinary  farm  purposes  or  so  as 
to  fit  the  land  for  cultivation  or  pasture,  provided  the 
same  is  not  cut  for  sale  but  for  use  in  connection  with 
the  premises.97  Where  mining  property  is  assigned 
her,  she  may  take  out  ore  in  a  vein  or  lead  already 
opened,  and  for  such  purpose  may  sink  a  shaft  to  strike 
a  lead  disclosed  in  the  mine,98  but  has  no  right  to  open 
up  new  mines.99 

As  between  herself  and  the  remainderman,  she  is 
liable  for  the  taxes.100 

§  388p.    Dower  recovered  by  default  or  collusion. 

"When  a  widow,  not  having  right  to  dower,  shall, 
during  the  infancy  of  the  heirs  of  her  husband,  or  any 
of  them,  or  of  any  person  entitled  to  the  lands,  recover 
dower  by  the  default  or  collusion  of  the  guardian  of 
such  infant  heir  or  other  person,  such  heir  or  other  per- 
son, so  entitled,  shall  not  be  prejudiced  thereby;  but 
when  he  comes  of  full  age,  he  shall  have  an  action 
against  such  widow  to  recover  the  lands  so  wrongfully 
awarded  for  dower. ' ' 101 

86  L.  O.  L.,  §  7307. 

»7  Disher  v.  Disher,  45  Neb.  100,  65  N.  W.  369;  Webster  v.  Webster, 
33  N.  H.  18;  McCracken  v.  McCracken,  6  T.  B.  Mon.  (Ky.)  352. 

»8  Ward  v.  Carp  River  Iron  Co.,  47  Mich.  65,  10  N.  W.  109;  Gains 
v.  Green  Pond  Iron  Min.  Co.,  33  N.  J.  Eq.  603;  MeCord  v.  Oakland 
Quicksilver  Min.  Co.,  64  Cal.  134,  27  Pac.  863. 

»»  Cecil  v.  Clark,  49  W.  Va.  359,  39  S.  E.  202;  Ohio  Oil  Co.  v. 
Daughetee,  240  111.  361,  88  N.  E.  818. 

100  Spiech  v.  Tierney,  56  Neb.  514,  76  N.  W.  1090;  King  v.  Boetcher 
(Neb.),  147  N.  W.  836. 

101  L.  O.  L.,  §  7314. 

(622) 


CHAPTER  XXX. 

ASSIGNMENT  OF  HOMESTEAD. 

8  389.  Descent  of  Homestead. 

390.  How  Homestead  of  Surviving  Spouse  Barred. 

391.  Rights  of  Survivor  in  Homestead. 

392.  Assignment  of  Homestead  by  County  Court. 

393.  Selection  and  Setting  Out  Homestead  from  Larger  Tract. 

394.  Assignment  of  Homestead  by  District  Court. 

395.  The  Remainder  in  the  Homestead  Property. 

§  389.    Descent  of  homestead. 

Upon  the  death  of  the  holder  of  the  legal  title  to  a 
homestead,  two  estates  are  created:  a  life  estate  in 
the  surviving  spouse,  which  cannot  be  defeated  by  will, 
and  an  estate  of  remainder  in  the  heirs  or  devisees.1 

The  homestead  is  defined  by  the  supreme  court  as 
the  house  and  land  where  the  family  dwells.2  It  is  the 
actual  home  of  the  family,  including  the  land  and 
buildings  which  constitute  the  same,  and  the  posses- 
sion and  enjoyment  of  all  which  may  be  successfully 
defended  by  either  husband  or  wife  during  the  mar- 
riage state  against  the  independent  acts  of  either,  and 
against  the  void  acts  of  either  or  both.  It  is  this  home- 
stead to  which  the  survivor  succeeds  and  in  which 
he  or  she  takes  a  life  estate.3 

Its  area  is  limited  to  one  hundred  and  sixty  acres, 
if  situated  outside  the  limits  of  an  incorporated  city 

1  Xaiman  v.  Bohlmeyer  (Neb.),  150  N.  W.  829;  Brichacek'v.  Bricha- 
cek,  75  Neb.  417,  106  N.  W.  473;  Bev.  Stats.,  c.  29,  §  1,  [3076], 

2  Gallagher  v.  Smiley  28  Neb.  189,  44  N.  W.  187;  Palmer  v.  Sawyer, 
74  Neb.  108,  103  N.  W.  1088. 

3  Anderson  v.  Schertz,  94  Neb.  390,  143  N.  W.  287;  Meisner  v.  Hill, 
92  Neb.  435,  138  N.  W.  583. 

(623) 


§  389  PROBATE  AND  ADMINISTRATION.          [Chap.  30 

or  village,  and  to  two  surveyed  and  platted  lots  if 
within  such  limits.4 

The  lots  or  tracts  must  be  contiguous,  but  in  case  of 
farm  lands,  need  not  be  in  the  same  government  sub- 
division.5 The  term  "lot"  includes  any  part  of  a 
platted  subdivision  of  a  city  or  village.6  Its  value  is 
limited,  as  against  the  rights  of  general  creditors,  to 
the  sum  of  two  thousand  dollars,  just  the  same  as  it 
was  during  the  lifetime  of  the  former  owner,  but  as 
against  the  interests  of  heirs  or  devisees  there  is  no 
limitation.7 

Such  value  is  determined  by  the  claimant's  interest 
in  the  land  and  not  by  the  actual  worth  of  the  prem- 
ises. Therefore,  if,  after  deducting  the  amount  of  the 
mortgages  and  liens  against  the  property,  the  value  is 
two  thousand  dollars  or  under,  the  entire  property 
passes  to  the  survivor,  subject  to  such  liens.8 

The  homestead  right  is  in  addition  to  the  statutory 

share  of  the  survivor,  or  the  provisions  made  for  him 

"or  her  by  will.    It  is  an  absolute  right  passing  to  the 

survivor,  though  the  children  may  all  be  of  age  and 

away  from  home,9  or  there  are  none  surviving,10  or  the 

4  Eev.  Stats.,  c.  29,  §  1,   [3076] ;'  Meisner  v.  Hill,  92  Neb.  435,  138 
N.  W.  583;  In  re  Jurgen's  Estate,  87  Neb.  571,  127  N.  W.  855;  Ander- 
son v.  Schertz,  94  Neb.  390,  143  N.  W.  238. 

5  Tindall  v.  Peterson,  71  Neb.  160,  98  N.  W.  688,  99  N.  W.  659. 

6  Norfolk  State  Bank  v.  Schwend,  51  Neb.  146,  70  N.  W.  970. 

7  Meisner  v.  Hill,  92  Neb.  435,  138  N.  W.  583.     This  ease  expressly 
overrules  Tyson  v.  Tyson,  61  Neb.  438,  98  N.  W.  1076,  and  Wardell  v. 
Wardell,  71  Neb.  774,  99  N.  W.  674,  in  so  far  as  they  hold  that  the 
two  thousand  dollar  limitation  applies  to  all  cases. 

8  Hoy  v.  Anderson,  39  Neb.  386,  58  N.  W.  125;  Corey  v.  Plummer,  4& 
Neb.  381,  67  N.  W.  445. 

9  Gallagher  v.  Smiley,  28  Neb.  189,  44  N.  W.  187. 

10  Roberts  v.  Greer,  22  Nev.  318,  40  Pac.  6. 

(624) 


Chap.  30]  ASSIGNMENT   OF   HOMESTEAD.  §  390 

survivor  is  not  the  head  of  a  family,11  and  does  not  de- 
pend on  occupancy.11' 

It  is  not  essential  that  the  decedent  held  a  title  in 
fee.  The  right  attaches  to  any  estate  of  inheritance.12 

A  homestead  has  been  defined  by  the  Oregon  su- 
preme court  as  the  home  place,  the  place  where  the 
family  resides.13  It  is  not  an  estate  or  a  fixed  interest 
in  or  charge  on  the  lands,  but  a  right  of  exemption 
from  levy  and  sale  on  execution  or  attachment  in  cer- 
tain real  estate  which  is  the  actual  abode  of,  and  is 
owned  by,  a  party  or  some  member  of  his  family.  It 
is  in  the  nature  of  a  contingent  interest,  which  becomes 
fixed  and  determinable  only  by  the  act  of  the  owner,  or 
owner  and  husband  or  wife  of  a  married  party.14 

Such  homestead  shall  not  exceed  fifteen  hundred  dol- 
lars in  value,  nor  one  hundred  and  sixty  acres  in  ex- 
tent, if  not  located  in  a  city  or  town  laid  off  into  blocks 
and  lots;  if  located  in  any  city  or  town,  then  it  shall 
not  exceed  one  block;  but  in  no  instance  shall  it  be 
reduced  to  less  than  twenty  acres  or  one  lot,  regardless 
of  value.15 

§  390.    How  homestead  right  barred. 

The  homestead  right  may  be  lost  by  abandonment. 
To  constitute  abandonment  it  must  appear  that  the 
surviving  spouse  left  the  home  of  the  decedent  long 
before  his  or  her  death,  without  cause,  and  with  intent 
to  renounce  the  marital  relations,  and  established  a 

11  First  Xat.  Bank  v.  Reece,  65  Neb.  292,  89  N.  W.  804. 
iia  Xaiman  v.  Bohlmeyer  (Xeb.),  150  N.  W.  829. 

12  State  v.  Townsend,  17  Neb.  530,  23  N.  W.  509;  Burling  v.  Alvord's 
Estate,  77  Neb.  861,  110  N.  W.  683. 

13  Mansfield  v.  Hill,  56  Or.  405,  108  Pac.  1007. 

14  L.  O.  L.,  §§  221,  223. 

15  L.  O.  L.,  §  222. 

40-.Pro.Ad.  (625) 


§  391  PROBATE  AND  ADMINISTRATION.         [Chap.  30 

home  elsewhere,  which  he  or  she  claimed  as  a  resi- 
dence.18 

Whether  an  antenuptial  contract,  executed  as  the 
statute  directs,  by  which  the  surviving  spouse  re- 
nounces the  right  to  inherit  a  part  or  all  the  lands  of 
the  decedent,  bars  the  homestead  right  is  an  open 
question.17  The  weight  of  authority  is  that  such  con- 
tract not  specifically  mentioning  the  homestead  is  not 
a  bar.18 

The  only  sure  way  the  homestead  right  can  be  barred 
is  by  a  conveyance  executed  and  acknowledged  by  both 
husband  and  wife  as  the  statute  provides.19  Any  con- 
tract, lease  or  agreement  to  devise  to  a  third  party 
which  is  not  so  executed  is  void.20 

§  391.    Rights  of  survivor  in  homestead. 

The  underlying  principle  of  the  homestead  law  is 
the  furnishing  the  surviving  spouse  a  place  where  he 
or  she  and  the  family  are  safe  as  to  everybody,  if  the 
place  is  not  worth  more  than  two  thousand  dollars, 
and  if  it  does  exceed  two  thousand  dollars  in  value, 
then  save  as  to  everybody  except  creditors.  Upon  the 
death  of  the  fee-holding  spouse,  a  new  title  in  the 
property  occupied  as  a  home  is  created  in  the  survivor, 

16  Dickman  v.  Burkhauser,  16  Neb.  686,  21  N.  W.  396;  Lainb  v. 
Wogan,  27  Neb.  236,  42  N.  W.  1041. 

l?  Reiger  v.  Schaible,  81  Neb.  33,  115  N.  W.  560. 

18  Zachman  v.  Zachman,  201  111.  380,  66  N.  E.  256;  Mahaffy  v. 
Mahaffy,  63  Iowa,  505,  18  N.  E.  685;  Mann  v.  Mann's  Estate,  53  Vt. 
38.  The  cases  above  cited  are  based  on  the  proposition  that  the  words 
"inherit  real  estate"  refer  to  the  vesting  of  the  fee. 

i»  Rev.  Stats.,  c.  29,  §  4,  [3079]. 

20  Meek  v.  Lange,  65  Neb.  783,  91  N.  W.  695;  Koike  v.  Wolf,  78  Neb. 
594,  111  N.  W.  134;  Teske  v.  Ditberner,  70  Neb.  544,  98  N.  W.  57.  , 

(626) 


Chap.  30]  ASSIGNMENT   OF   HOMESTEAD.  §  391 

which  vests,  eo  instanti,  in  such  survivor  for  life,  in- 
dividually and  unconditionally,  free  from  the  right  of 
the  children  of  either  spouse  to  a  division  of  the  income 
therefrom.21 

The  homestead  right  is  not  lost  by  abandonment,22 
unless  such  abandonment  had  become  a  bar  to  the  right 
of  the  survivor  to  claim  a  homestead  previous  to  the 
death  of  the  fee-holding  spouse,23  nor  is  it  in  any  way 
dependent  upon  the  actual  occupancy  of  the  premises 
as  a  home  by  such  survivor  or  family.24  The  surviving 
spouse  is  under  no  obligations  to  share  the  income  of 
the  premises  with  the  minor  children  of  the  fee-hold- 
ing spouse.25 

Where  the  title  to  the  homestead  was  in  the  surviv- 
ing spouse,  and  such  survivor  on  the  death  of  the  dece- 
dent ceased  to  be  the  head  of  a  family,  the  homestead 
rights  which  became  vested  in  such  survivor  during 
the  lifetime  of  such  deceased  spouse  do  not  cease  at 
his  or  her  death.26 

21  Shearon  v.  Goff,  95  Xeb.  417,  145  N.  W.  855;  Durland  v.  Seller,  27 
Neb.  33,  42  N.  W.  741;  Nebraska  Loan  &  Trust  Co.  v.  Smassall,  38  Neb. 
516,  57  N.  W.  167;  In  re  Estate  of  Robertson,  86  Neb.  490,  125  N.  W. 
1093. 

22  Richardson  County  v.  Smith,  25  Xeb.  767,  41  N.  W.  744;  Durland 
v.  Sci!er.  27  Xeb.  33,  44  X.  W.  744;  Bauman  v.  Franse,  37  Neb.  897, 
56  X.  W.  305 ;  L.  O.  L.,  §  223. 

23  Section  390,  supra. 

24  Richardson  County  v.  Smith,  25  Neb.  767,  41  N.  W.  744;  Shearon 
v.  Goff,  95  Neb.  417,  145  N.  W.  855;  Naiman  v.  Bohlmeyer  (Neb.),  150 
N.  W.  829. 

25  In  re  Estate  of  Robertson,  86  Neb.  490,  125  N.  W.  1093;  Fletcher 
v.  Fletcher,  83  Xeb.  156,  119  N.  W.  232. 

26  First  Nat.  Bank  of  Greenwood  v.  Reece,  64  Neb.  292,  89  N.  W.  804; 
Palmer  v.  Sawyer,  74  Neb.  108,  103  N.  W.  1088. 

.(627) 


§  391  PROBATE  AND  ADMINISTRATION.         [Chap.  30 

The  homestead  is  subject  to  liens  and  encumbrances 
existing  thereon  at  the  death  of  the  decedent.27  It 
cannot  be  sold  under  license  from  the  district  court  for 
the  payment  of  the  debts  of  the  estate  or  costs  and 
expenses  of  administration,  though  such  debts  are 
secured  by  liens  on  the  property.28  The  remedy  for 
the  enforcement  of  such  claims  is  by  foreclosure,  and 
pending  the  same  the  court  has  no  power  to  appoint 
a  receiver  to  collect  the  rents  and  profits.29 

Neither  executor  nor  administrator  have  any  interest 
whatever  in  the  homestead  property  in  which  the  sur- 
viving spouse  takes  a  life  estate.30 

No  formal  action  making  a  selection  is  necessary. 
If  the  survivor  continues  to  occupy  the  town  lots  or 
one  hundred  sixty  acre  tract  which  comprised  the 
homestead  during  the  life  of  the  decedent,  such  occu- 
pancy, in  the  absence  of  clear  and  satisfactory  evidence 
to  the  contrary,  is  a  sufficient  selection  of  the  property 
from  the  lands  of  the  decedent.31 

In  Oregon  the  widow  and  minor  children  are  entitled 
to  remain  in  possession  of  the  homestead  until  admin- 

27  Wardell  v.  Wardell,  71  Neb.  774,  99  N.  W.  674;   Cooley  v.  Jansen, 
54  Neb.  33,  74  N.  W.  351;  Prugh  v.  Portsmouth  Sav.  Bank,  48  Neb.  414, 
67  N.  W.  445;  Hoy  v.  Anderson,  39  Neb.  386,  58  N.  W.  125. 

28  Bixby  v.  Jewell,  72  Neb.  755,  101  N.  W.  1026;  Luona  v.  Carr,  77 
Neb.  833,  110  N.  W.  705;  Holmes  v.  Mason,  80  Neb.  448,  114  N.  W.  606; 
Hadsal  v.  Hadsal,  82  Neb.  587,  118  N.  W.  331;   Judson  v.  Creighton, 
88  Neb.  37,  128  N.  W.  620;  Naiman  v.  Bohlmeyer  (Neb.),  150  N.  W. 
829. 

29  Joslin  v.  Williams,  3  Neb.  Unof.  192,  90  N.  W.  1124. 

SO  In  re  Estate  of  Eobertson,  86  Neb.  490,  125  N.  W.  1093;  Tindall 
v.  Peterson,  71  Neb.  160,  98  N.  W.  688,  99  N.  W.  659;  Brandon  v. 
Jensen,  74  Neb.  569,  104  N.  W.  1054;  Hadsall  v.  Hadsall,  82  Neb.  587, 
118  N.  W.  331. 

si  Shearon  v.  Goff,  95  Neb.  417,  145  N.  W.  855. 

(628) 


Chap.  30]  ASSIGNMENT   OF    HOMESTEAD.  §  392 

istration  has  been  granted  and  the  inventory  filed,32 
and  the  widow  is  also  entitled  to  remain  in  the  dwell- 
ing-house of  her  husband  for  one  year  without  being 
chargeable  with  rent  therefor.33  Her  rights  in  the 
dwelling-house  are  merely  to  continue  in  possession 
during  the  year.  If  she  leaves  the  property  she  can- 
not regain  possession  by  either  ejectment  or  forcible 
detention.34  The  exemption  passes  to  the  party  or 
parties  who  succeed  to  the  fee,  but  there  is  no  way  by 
which  the  exempt  property  can  be  set  off  in  favor  of 
the  surviving  spouse  or  family.35  The  fee  passes  to 
the  heirs  subject  to  the  exemption.8' 

§  392.    Assignment  of  homestead  by  county  court. 

The  county  court  has  inherent  jurisdiction,  though 
of  a  limited  character,  to  assign  the  homestead  to  the 
surviving  spouse.37  The  rule  is  the  same  as  for  as- 
signing dower  under  the  former  dower  law.  If  the 
right  is  contested  and  an  issue  of  fact  raised,  which  if 
established  by  proof  would  defeat  such  right,  and  the 
issue  is  of  such  a  nature  that  the  county  court  has  no 
power  to  determine  it,  that  court  is  without  jurisdic- 
tion.38 The  answer  should  set  up  the  defense  affirma- 
tively. A  general  denial  or  plea  to  the  jurisdiction  is 
not  sufficient.39 

32  L.  0.  L.,   §  1233. 

33  L.  O.  L.,  §  7308 ;  Aikin  v.  Aikin,  12  Or.  293,  6  Pac.  682. 

34  Aikin  v.  Aikin,  supra. 

35  Mansfield  v.  Hill,  56  Or.  405,  107  Pac.  471. 

36  L.  O.  L.,  §  226. 

37  Guthman  v.  Guthman,  18  Neb.  98,  24  N.  W.  435;  Seery  v.  Curry, 
26  Xeb.  353,  42  N.  W.  97. 

38  Tyson  v.  Tyson,  71  Neb.  438,  98  N.  W.  1076;  Guthman  v.  Guthman, 
18  Neb.  98,  24  N.  W.  435. 

39  Tyson  v.  Tyson,  71  Neb.  438,  98  N.  W.  1076;  demons  v.  Helebhan, 
52  Neb.  287,  72  N.  W.  270. 

(629) 


§  392  PROBATE  AND  ADMINISTRATION-.         [Chap.  30 

Application  for  assignment  of  homestead  should  be 
by  petition  of  the  claimant,  under  oath,  or  if  the  claim- 
ant is  incompetent,  by  his  general  guardian  or  guardian 
ad  litem.  The  judge  may  then  set  the  petition  for 
hearing  and  give  notice  to  all  parties  interested  as  he 
sees  fit.  The  statute  contains  no  directions  in  regard 
to  notice  or  service,  and  its  issue  and  service  are  within 
the  discretion  of  the  court. 

If  the  property  clearly  appears  to  be  a  homestead 
and  the  interest  of  the  survivor  not  worth  over  two 
thousand  dollars,  or  if  worth  more  than  two  thousand 
dollars,  that  there  are  no  general  creditors  having  any 
claim  against  it,  the  court  should  make  an  order  as- 
signing it  to  the  survivor  for  life,  provided,  of  course, 
no  question  affecting  the  jurisdiction  is  raised. 

Form  No.  167. 

PETITION  FOR  ASSIGNMENT  OF  HOMESTEAD. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that  she 
is  the  widow  of  said  A.  B.,  deceased;  that  said  A.  B.  was  at  the  date 
of  his  death  the  owner  in  fee  of  the  following  described  real  estate 
situated  in  said  county  [describe  real  estate] ;  that  there  are  no  creditors 
of  said  estate  or  charges  against  said  estate  save  and  except  costs  and 
expenses  of  administration,  and  there  is  sufficient  personal  property  to 
pay  the  same;  or  that  said  real  estate  is  worth  not  more  than  two  thou- 
sand dollars  after  first  deducting  existing  liens  against  the  same;  that 
said  above-described  premises  constituted  the  homestead  of  said  A.  B. 
and  were  occupied  as  such  by  said  A.  B.  and  your  petitioner  at  the  time 
of  his  death,  and  that  your  petitioner  is  entitled  to  a  homestead  in  said 
premises  for  the  use  and  benefit  of  herself  and  the  minor  children  of 
her,  said  petitioner,  and  said  A.  B. 

Your  petitioner  therefore  prays  that  an  order  of  said  court  be  made 
and  entered  setting  out  said  premises  to  her  as  a  homestead,  for  the 
use  and  benefit  of  herself  during  her  lifetime  and  of  the  minor  children 
of  said  decedent  during  their  minority. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

(630) 


Chap.  30]  ASSIGNMENT   OF   HOMESTEAD.  §  393 

Form  No.  168. 
ORDER  ASSIGNING  HOMESTEAD. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition,  under  oath,  of  C.  D.  for  the  assignment  to  her 
of  the  following  described  property  [describe  premises  as  in  petition], 
as  and  for  a  homestead,  and  the  evidence,  and  was  submitted  to  the 
court. 

Upon  consideration  whereof,  the  court  finds  that  said  C.  D.  is  the 
widow  of  said  A.  B.,  that  said  premises  were  at  the  date  of  the  death 
of  said  A.  B.  occupied  by  said  A.  B.  and  said  petitioner  as  a  homestead, 
and  that  the  net  value  of  the  same,  after  first  deducting  existing  liens 
thereon,  does  not  exceed  the  sum  of  two  thousand  dollars;  or  that  there 
are  no  creditors  of  said  estate  or  charges  against  said  estate  save  and 
except  costs  and  expenses  of  administration,  and  there  is  sufficient  per- 
sonal property  to  pay  the  same,  and  that  said  petitioner  is  entitled  to 
have  said  premises  set  out  to  her  as  a  homestead. 

It  is  therefore  ordered  that  said  premises  be  assigned  to  said  C.  D. 
as  a  homestead  for  the  use  and  benefit  of  herself  and  minor  children 
during  her  lifetime. 

(Signed)     J.  K., 
County  Judge. 

§  393.    Selection   and   setting   out   homestead   from 
larger  tract. 

When  an  execution  issued  on  a  judgment  rendered 
against  decedent  in  his  lifetime  is  levied  on  land  in 
which  a  homestead  exemption  is  included,  the  head  of 
the  family  may  have  such  exemption  set  out  to  her  in 
the  same  manner  as  the  judgment  debtor  could  if  he 
were  living.40 

Where  there  are  general  creditors  of  the  estate  and 
the  value  of  the  homestead  tract  exceeds  two  thousand 
dollars,  there  is  no  method  provided  by  the  statutes  for 

40  Rev.  Stats.,  c.  29,  §  5,  [3080].  See  First  Nat.  Bank  of  Tekamah 
v.  McClanahan,  83  Neb.  706,  120  N.  W.  185. 

(631) 


§  393  PROBATE  AND  ADMINISTRATION.          [Chap.  30 

setting  out  the  specific  tract  on  which  the  dwelling  and 
appurtenances  are  located,  though  the  value  of  the 
interest  of  the  estate  therein  may  be  under  the  two 
thousand  dollars.  The  former  dower  law  directed  the 
appointment  of  appraisers  by  the  county  court  to  set 
out  dower.  From  analogy  between  homestead  and 
dower  there  would  seem  to  be  no  sufficient  reason  why 
the  homestead  right  could  not  be  set  out  the  same  way 
in  cases  where  the  right  is  not  questioned,  and  the 
object  is  simply  to  segregate  from  the  larger  tract  that 
particular  part  of  the  same  which  cannot  be  reached 
for  debts.  If  such  part  cannot  be  set  out  without  in- 
jury to  the  whole  tract,  then  the  county  court  is  with- 
out jurisdiction. 

The  value  of  the  homestead  property  should  be  fixed 
as  of  the  date  of  the  death  of  decedent.41 

Form  No.  169. 

ORDER  FOR  ASSIGNMENT  OF  HOMESTEAD  AND  APPOINTING 

APPRAISERS. 
[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  C.  B.,  widow  of  said  A.  B.,  under  oath,  for 
the  assignment  to  her  of  a  homestead  in  the  homestead  property  of  which 
said  A.  B.  died  seised,  and  the  evidence  and  was  submitted  to  the  court. 

Upon  consideration  whereof  the  court  finds  that  notice  of  the  time 
and  place  fixed  for  hearing  on  said  petition  has  been  given  pursuant  to 
the  order  of  said  court  heretofore  made  and  entered;  that  said  A.  B. 
died  seised  of  the  following  described  real  estate,  which  was  at  the 
date  of  his  death  occupied  by  himself  and  family  as  a  homestead,  —  — ; 
that  the  value  of  said  real  estate  exceeds  the  sum  of  $2,000;  that  said 
petitioner  is  entitled  to  a  homestead  exemption  in  said  real  estate  to 
the  extent  of  $2,000,  and  that  on  account  of  the  insufficiency  of  the 
personal  estate  of  said  decedent  to  pay  the  debts  and  costs  of  adminis- 
tration of  said  estate  a  sale  of  real  estate  will  probably  have  to  be  made 


41  In  re  Jurgen's  Estate,  87  Neb.  571,  127  N.  W.  885. 
(632) 


Chap.  30J  ASSIGNMENT   OF   HOMESTEAD.  §  39.3 

by  the  administrator  of  said  estate,  including  that  interest  in  said  above- 
described  real  estate  which  is  liable  for  the  debts  of  said  estate. 

It  is  therefore  ordered  and  adjudged  by  me  that  E.  F.,  G.  H.  and 
L.  M.,  disinterested  residents  of  said  county,  be  and  hereby  are  ap- 
pointed appraisers,  and  are  hereby  directed  to  set  apart  from  said  real 
estate  a  part  thereof  on  which  the  buildings  and  appurtenances  are 
located,  not  exceeding  in  value  $2,000,  as  a  homestead  for  said  C.  B., 
provided  the  same  can  be  done  without  injury  to  said  real  estate  as  a 

whole,  and  to  report  their  proceedings  hereon  to  this  court  within 

days  from  this  date. 

(Signed)     J.  K., 

County  Judge. 
Form  No.  170. 

REPORT  OP  APPRAISERS. 
[Title  of  Cause  and  Court.] 

We,  E.  F.,  G.  H.,  and  L.  M.,  appraisers  duly  appointed  by  said  court 
to  set  out  the  homestead  exemption  of  C.  B.,  widow  of  said  A.  B.,  in 
the  homestead  of  which  said  A.  B.  died  seised,  respectfully  report  that 
we  have  examined  said  homestead  and  premises  and  find  that  a  tract 
of  land  on  which  the  buildings  and  appurtenances  are  located,  of  the 
value  of  $2,000,  can  be  set  apart  without  injury  to  the  entire  tract, 
which  said  tract  that  can  be  so  set  apart  is  described  as  fol- 
lows:   . 

Dated  this  day  of  ,  19 — . 

(Signed)     E.  F., 
G.  H., 
L.  M., 
Appraisers. 
Form  No.  171. 

ORDER  CONFIRMING  REPORT   AND   ASSIGNING   HOMESTEAD 

EXEMPTION. 
[Title  of  Cause  and  Court.] 

Now,  on.  this  — — —  day  of  ,  19—,  E.  F.,  G.  H.,  and  L.  M., 

appraisers  heretofore  appointed  to  set  out  the  homestead  exemption  of 
C.  B.  in  the  homestead  of  which  said  A.  B.  died  seised,  having  filed  their 
report,  and  the  same  having  been  examined  by  said  court,  it  is  hereby 
ordered  that  the  same  be  approved  and  that  the  following  described 
tract  of  land  be  set  out  to  said  C.  B.  as  and  for  a  homestead  exemption: 


(Signed)     J.  K., 
County  Judge. 

(633) 


§  393  PROBATE  AND  ADMINISTRATION.          [Chap.  30 

In  Oregon  the  homestead  exemption  can  only  be  set 
out  in  cases  where  a  creditor  has  had  an  attachment 
or  execution  levied  on  the  property.  The  proceedings 
which  may  be  instituted  by  the  owner  of  the  fee  or  the 
husband,  wife,  agent  or  attorney  of  such  owner,  are 
the  same  as  when  the  levy  is  made  during  the  lifetime 
of  the  debtor,42  and  are  commenced  by  a  notice  to  the 
officer  making  the  levy  that  the  owner  claims  a  home- 
stead exemption  in  the  premises,  describing  the  same 
by  metes  and  bounds,  lot  or  block,  or  legal  subdivision 
of  the  United  States.  The  officer  thereupon  notifies 
the  creditor  of  such  claim.  If  the  property  exceeds 
the  minimum  of  twenty  acres  or  one  lot  and  the  owner 
deem  it  of  greater  value  than  fifteen  hundred  dollars, 
he  may  direct  the  sheriff  to  select  three  disinterested 
householders  of  the  county,  who  shall  examine  and 
appraise  such  homestead  under  oath,  commencing  with 
the  twenty  acres  or  lot  upon  which  such  dwelling  is 
located,  appraising  such  lot  or  twenty  acres  sepa- 
rately; and  if  the  same  exceed  fifteen  hundred  dollars, 
then  the  sheriff  shall  proceed  to  sell  all  in  excess  of 
fifteen  hundred  dollars,  by  lots  or  smallest  legal  sub- 
divisions, offering  them  in  the  order  directed  by  the 
judgment  debtor,  if  he  chooses  to  direct;  otherwise  he 
shall  sell  the  same  as  aforesaid,  so  as  to  leave  the  home- 
stead as  compact  as  possible.43  In  lieu  of  such  pro- 
ceedings the  creditor  may  pay  the  judgment  debtor 
fifteen  hundred  dollars,  and  then  sell  the  homestead  as 
he  might  heretofore  have  done,  adding  the  fifteen  hun- 
dred dollars  to  his  lien.  The  fifteen  hundred  dollars 
in  the  hands  of  the  debtor  shall  be  exempt  from  exe- 
cution.44 

42  Mansfield  v.  Hill,  56  Or.  405,  107  Pac.  471. 

43  L.   O.   L.,    §  224. 

44  L.  O.  L.,  §  225. 

(634) 


Chap.  30]  ASSIGNMENT   OF    HOMESTEAD.  §  394 

§  394.    Assignment  by  district  court. 

The  statute  contains  no  directions  for  assigning  the 
homestead  when,  on  account  of  the  indebtedness  of  the 
estate,  the  interest  of  the  survivor  is  limited  to  the  use 
of  two  thousand  dollars  in  value,  and  a  tract  of  land 
on  which  the  buildings  and  appurtenances  are  situ- 
ated cannot  be  set  apart  to  such  survivor:  In  such 
case  a  homestead  right  is  a  first  lien  on  the  property,45 
subject,  of  course,  to  prior  existing  liens.46 

The  district  court  of  the  county  in  which  the  home- 
stead property  is  situated  has  original  jurisdiction  to 
set  out  the  homestead  exemption  in  cases  of  this  char- 
acter, as  well  as  in  cases  where  an  answer  is  filed 
bringing  the  title  to  the  real  estate  into  question.47 
The  claimant  may  maintain  an  action,  substantially  a 
bill  in  equity,  to  have  such  interest  set  out  to  him. 
The  Wardell  case  is  based  on  the  proposition  that  inas- 
much as  the  entire  estate  of  realty,  excepting  only  the 
homestead  right,  is  subject  to  debts,  the  administrator 
may  sell  the  land  under  the  statute  directing  sales  for 
payment  of  debts,  and  in  that  action  or  proceeding  the 
right  of  the  survivor  in  the  homestead  may  be  ascer- 
tained, its  value  determined  and  paid  to  him.  This 
case  was  overruled  by  Meisner  v.  Hill  only  to  the  extent 
that  the  court  followed  a  wrong  rule  of  construction  of 
the  statutes  which  define  a  homestead ;  that  instead  of 
allowing  Mrs.  Wardell  the  use  of  two  thousand  dollars 
during  her  lifetime,  she  should  have  been  given  the  use 

«  Perry  Livestock  Co.  v.  Biggs,  4  Neb.  Unof.  440,  94  N.  W.  712; 
Meisner  v.  Hill,  92  Neb.  435,  138  N.  W.  583. 
46  Section  391,  supra. 
*7  Wardell  v.  Wardell,  71  Neb.  774,  99  N.  W.  674. 

(635) 


§  395  PROBATE  AND  ADMINISTRATION.         [Chap.  30 

of  what  was  left  of  the  proceeds  of  the  sale  of  the 
home  property  after  paying  the  debts. 

§  395.    The  remainder  in  the  homestead  property. 

On  the  death  of  the  surviving  spouse,  the  remainder 
in  the  homestead  property,  unless  otherwise  disposed 
of  by  will,  passes  to  the  heirs  of  the  fee-holding 
spouse.48  Heirs  and  devisees  take  such  remainder 
discharged  from  liability  for  debts  of  the  former 
owner  of  the  fee  to  the  same  extent  that  it  was  in  his 
lifetime.49 

48  Schuyler  v.  Hanna,  31  Neb.  307,  47  N.  W.  932;  Fort  T.  Crook,  3 
Neb.  Unof.  12,  90  N.  W.  634. 

49  Rev.  Stats.,  c.  29,  §  16,    [3091] ;   Holmes  v.  Mason,  80  Neb.  448, 
114  N.'W.  605;  Hall  v.  Hooper,  47  Neb.  Ill,  66  N.  W.  33;  Lyons  T.  Carr, 
77  Neb.  833,  110  N.  W.  705. 

(636) 


CHAPTER  XXXI. 

INHERITANCE  TAX. 

§  396.  Nature  of  the  Tax. 

397.  Tax  on  Inheritance,  Devises  and  Bequests. 

398.  Property  Transferred  in  Contemplation  of  Death. 

399.  Property  Liable  to  Taxation. 

400.  Jurisdiction  of  County  Court  Over  Inheritance  Tax. 

401.  Duties  of  Appraisers. 

402.  Duties  of  Appraisers — Concluded. 

403.  Assessment  of  the  Tax. 

404.  Appeals. 

405.  When  Inheritance  Tax  Due. 

406.  Payment    of    Inheritance    Tax   by   Executor,    Administrator    or 

Trustee. 

407.  Refunding  Excess  or  Erroneous  Payment. 

408.  Action  for  Recovery  of  Tax. 

409.  Inheritance  Tax  Records. 
409a.  Life  Expectancy  Tables. 

§  396.    Nature  of  the  tax. 

The  right  of  a  person  to  take  property  by  descent, 
devise  or  bequest  depends  upon  statutory  and  not  com- 
mon law,  and  therefore  the  state  has  power  to  impose 
a  restriction  in  the  way  of  a  tax  on  inheritances,  be- 
quests and  devises,  and  also  to  fix  the  situs  of  the  prop- 
erty for  purposes  of  taxation.1  It  is  not  a  tax  on  prop- 
erty, but  on  the  right  of  succession  to  property,  and  is 
not  within  the  constitutional  provisions  requiring  uni- 
formity of  taxation  because  not  included  therein.2 

1  In  re  Sanford's  Estate,  90  Neb.  410,  133  N.  W.  870;  State  v.  Vinson- 
haler,  74  Neb.  675,  105  N.  W.  472;  Magoun  v.  Illinois  Trust  &  Savings 
Bank,  170  U.  S.  283,  42  L.  Ed.  1037;  United  States  v.  Perkins,  163  U.  S. 
625,  41  L.  Ed.  287. 

2  State  v.  Allston,  94  Tenn.  674,  30  S.  W.  750;  Union  Trust  Co.  T. 
Durfee,  125  Mich.  487,  84  N.  W'.  1101;   In  re  Swift,  137  N.  Y.  77,  32 
N.  E.  1096;  State  v.  Hamlin,  86  Me.  445,  20  Atl.  76;  Ferry  v.  Campbell, 

(637) 


§  397  PROBATE  AND  ADMINISTRATION.         [Chap.  31 

§  397.    Tax  on  inheritances,  devises  and  bequests. 

The  lineal  descendants,  father,  mother,  husband, 
wife,  brother,  sister,  widow  of  a  deceased  son,  or  hus- 
band of  a  deceased  daughter  of  any  person  who  died 
seised  or  possessed  of  any  property,  real,  personal  and 
mixed,  which  shall  pass  by  will  or  the  intestate  laws 
of  this  state,  while  a  resident  of  this  state,  or  if  he 
was  not  a  resident  of  this  state  at  the  time  of  his  death 
had  property  within  this  state,  are  liable  for  the  pay- 
ment of  an  inheritance  tax  upon  the  clear  market  value 
of  the  property  so  actually  received  by  each  such  per- 
son of  one  per  cent  on  the  excess  above  ten  thousand 
dollars.  Any  child  or  children  adopted  as  such  in  con- 
formity to  the  laws  of  the  state,  or  any  person  to  whom 
the  deceased  for  not  less  than  ten  years  stood  in  the 
acknowledged  relation  of  parent,  is  liable  to  the  same 
tax.3 

The  statutory  share  of  a  surviving  spouse  does  not 
pass  under  the  intestate  laws,  though  right  of  posses- 
sion does  not  accrue  until  the  death  of  the  decedent, 
but  by  virtue  of  the  marital  relation.  It  is  not  subject 
to  the  payment  of  an  inheritance  tax.4  Should  dece- 
dent be  testate  and  he  or  she  elect  to  take  under  the 
will,  the  value  of  such  statutory  interest  would  still 

110  Iowa,  290,  81  N.  W.  604;  In  re  Short's  Estate,  16  Pa.  63.  Inherit- 
ance tax  laws  have  been  in  force  in  England  for  almost  a  hundred 
years,  and  within  the  last  twenty-five  years  have  been  placed  on  the 
statute  books  of  nearly  all  of  the  United  States.  Their  constitutionality 
has  been  strongly  attacked  in  both  state  and  federal  courts,  the 
power  of  legislatures  to  enact  them  has  been  almost  uniformly  sustained, 
and  they  are  a  very  important  part  of  our  revenue  system. 

8  Rev.  Stats.,  c.  69,  §  334,  [6622]. 

4  Strahan  v.  Wayne  County,  93  Neb.  828,  142  N.  W.  678. 

(638) 


Chap.  31]  INHERITANCE  TAX.  §  397 

be  exempt.5  The  surviving  spouse  takes  the  home- 
stead interest  also  by  virtue  of  the  marital  relation, 
and  the  same  rule  would  make  the  present  value  of  his 
or  her  interest  therein  exempt.6 

Collateral  heirs  are  liable  for  the  payment  of  a  tax 
of  two  per  cent  on  the  excess  over  two  thousand  dol- 
lars of  the  clear  market  value  of  the  property  actually 
received  by  each  one  of  them,  whether  by  descent,  be- 
quest or  devise. 

Other  persons  or  corporations  receiving  property  in 
the  same  way  are  liable  to  a  tax  as  follows:  On  each 
and  every  hundred  dollars  of  the  clear  market  value  of 
all  property,  and  at  the  same  rate  for  any  less  amount, 
up  to  five  thousand  dollars,  two  dollars;  on  all  estates 
of  over  five  thousand  dollars  and  not  exceeding  ten 
thousand  dollars,  three  dollars;  on  all  estates  of  over 
ten  thousand  dollars  and  not  exceeding  twenty  thou- 
sand dollars,  four  dollars;  on  all  estates  of  over  twenty 
thousand  dollars  and  not  exceeding  fifty  thousand  dol- 
lars, five  dollars;  and  on  all  estates  of  over  fifty  thou- 
sand dollars,  six  dollars.  Estates  of  under  five  hun- 
dred dollars  are  not  subject  to  a  tax.7 

A  devise  or  bequest  of  any  property  or  income 
therefrom  or  interest  therein  for  life  or  years  to  one  of 
the  parties  liable  for  the  lowest  inheritance  tax  rate, 
with  remainder  to  a  collateral  heir  or  stranger  in  blood, 
or  a  corporation,  is  subject  to  the  tax  separate  and 
apart  from  the  remainder.8 

5  In  re  Sanford's  Estate,  91  Neb.  752,  137  N.  W.  864. 

6  In  re  Estate  of  Kennedy,  157  Cal.  517,  108  Pac.  280. 

7  Rev.   Stats.,  c.  69,   §  334,    [6622]. 

8  Eev.  Stats.,  c.  69,  §  335,  [6623]. 

(639) 


§  397  PEOBATB  AND  ADMINISTRATION.         [Chap.  31 

If  the  remainder  passes  to  one  of  the  same  class  as 
the  life  estate  or  term  for  years,  the  lesser  estate  is 
not  separately  taxable.  The  intent  of  the  law  seems 
to  be  not  to  exempt  either  from  taxation,  but  to  collect 
the  tax  the  same  as  though  it  were  an  absolute  bequest 
or  devise,  leaving  its  adjustment  to  the  recipients.9 
The  Nebraska  statute  was  adopted  from  Illinois. 

The  inheritance  tax  law  of  Oregon  includes  grand- 
parents among  those  liable  for  the  one  per  cent  tax, 
fixes  the  exempt  amount  at  five  thousand  dollars,  and 
entirely  exempts  estates  of  under  ten  thousand  dollars 
in  value.  When  property  passes  to  collateral  heirs, 
the  exemption  is  two  thousand  dollars,  and  estates 
of  under  five  thousand  dollars  are  exempt.  In  all 
other  cases  the  tax  is  three  per  cent  on  all  amounts  re- 
ceived up  to  ten  thousand  dollars,  four  per  cent  on  all 
amounts  over  ten  thousand  and  not  exceeding  twenty 
thousand  dollars,  and  five  per  cent  on  amounts  received 
over  twenty  thousand  and  not  exceeding  fifty  thou- 
sand, and  six  per  cent  on  amounts  over  fifty  thousand 
dollars.  Gifts  of  under  five  hundred  dollars  in  value 
and  all  gifts  to  benevolent,  charitable  or  educational 
institutions  incorporated  in  Oregon  and  actually  en- 
gaged therein  in  carrying  out  the  work  for  which  they 
were  incorporated,  or  to  any  person  or  persons  to  be 
held  in  trust  for  any  such  institution  in  lieu  thereof, 
are  entirely  exempt.10 

The  Oregon  inheritance  tax  law  is  drafted  on  the 
same  lines  as  that  of  Nebraska.  It  is  construed  there 
as  including  the  widow's  dower,  though  that  question 
has  never  been  decided  by  the  supreme  court. 

•  In  re  Kingman's  Estate,  220  111.  563,  77  N.  E.  135. 
10  L.  O.  L.,  §§  1192,  1191. 

(640) 


Chap.  31]  INHERITANCE  TAX.  §  398 

§  398.    Property    transferred    in    contemplation   of 
death. 

Property  transferred  by  deed,  grant,  sale  or  gift, 
made  in  contemplation  of  the  death  of  the  grantor  or 
bargainer,  or  intended  to  take  effect  in  possession  or 
enjoyment,  after  such  death,  to  any  person  or  persons 
or  any  body  politic  or  corporate,  in  trust  or  otherwise, 
or  by  reason  thereof  any  person  or  body  corporate 
shall  become  beneficially  entitled,  in  possession  or  ex- 
pectation to  any  property  or  income  therefrom,  is  also 
subject  to  a  tax  in  the  same  amounts.11 

The  law  imposes  no  restrictions  on  the  right  of  a 
person  to  give  away  his  property  during  his  lifetime, 
provided  the  gift  was  actually  made,  not  colorable 
only,  and  not  in  contemplation  of  death  and  with  in- 
tent to  defeat  collection  of  the  tax.12  Whether  or  not 
it  was  so  made  is  largely  a  question  of  fact,  determined 
from  a  consideration  of  the  terms  of  the  instrument, 
the  age  and  state  of  health  of  the  deceased,  and  all  the 
circumstances  and  conditions  surrounding  it.13  Gifts 
causa  mortis  are  clearly  taxable,14  as  is  a  deed  of  prac- 
tically all  one's  property  shortly  before  death,  with 
full  knowledge  that  death  was  imminent  and  without 
consideration.15 

The  term  "in  contemplation  of  death"  means  the 
apprehension  which  arises  from  some  existing  condi- 

11  Rev.  Stats.,  c.  69,  §  334,   [6622]  ;  L.  O.  L.,  §  1191. 

12  People  v.  Kelley,  218  111.  509,  75  N.  E.  1038. 

13  In  re  Spalding,  163  N.  Y.  607,  57  N.  E.  1134;  State  v.  Pabst,  139 
Wis.  561,  121  N.  W.  351;  In  re  Benton,  234  111.  366,  84  N.  E.  1026. 

»  Matter  of  Cornell,  170  N.  Y.  423,  63  N.  E.  445. 
is  Rosenthal  v.   People,   211    111.  306,  71   N,  E.   1121;   Merrifield  v. 
People,  212  111.  400,  72  N.  E.  446. 

41— Pro.  Ad.  (641) 


§  398  PROBATE  AND  ADMINISTRATION.         [Chap.  31 

tion  of  body  or  impending  peril,  and  not  the  general 
expectation  which  every  mortal  possesses.16 

The  payment  of  the  tax  can  only  be  defeated  by  such 
a  bona  fide  conveyance  as  parts  absolutely  with  the 
title,  control,  management,  possession  and  enjoyment 
during  the  grantor's  lifetime,17  and  not  made  in  con- 
templation of  death.18 

The  burden  of  proof  is  on  the  county  to  prove  that 
gifts  made  by  decedent  in  his  lifetime  were  made  for 
the  purpose  of  defeating  payment  of  the  tax.19 

The  Oregon  statute  protects  the  interest  of  the  state 
to  a  greater  extent  than  that  of  Nebraska,  as  it  imposes 
a  liability  for  the  payment  of  the  tax  in  certain  cases 
on  parties  who  had  in  their  possession  assets  of  an 
estate.  No  safe  deposit  company,  trust  company, 
bank,  corporation,  person,  or  persons  holding  securities 
or  assets  of  a  decedent  or  of  a  corporation  in  which  de- 
cedent at  the  time  of  his  death  owned  any  stock,  shall 
deliver  or  transfer  the  same  to  the  executors,  admin- 
istrators or  legal  representatives  of  said  decedent,  or 
upon  their  order  or  request,  unless  notice  of  the  time 
and  place  of  such  intended  transfer  be  given  the  state 
treasurer  in  writing  at  least  five  days  prior  to  such 
transfer.  The  treasurer  or  his  representative  has  the 
right  to  examine  the  securities,  and  if  he  deems  it  ad- 
visable that  the  securities  be  not  immediately  deliv- 
ered, he  shall  notify  the  party  holding  the  same  in 
writing  not  to  deliver  them  for  ten  days,  unless  the 

1«  In  re  Baker's  Estate,  178  N.  Y.  575,  70  N.  E.  1094;  In  re  Spalding, 
163  N.  Y.  607,  57  N.  E.  1124. 

17  Lacy  v.  State  Treasurer  (Iowa),  121  N.  W.  179;  Seibert's  Appeal, 
110  Pa.  329,  1  Atl.  346;  People  v.  Moir,  207  111.  180,  69  N.  E.  905; 
In  re  Todd,  237  Pa.  466,  85  Atl.  845. 

18  Matter  of  Baker,  178  N.  Y.  575,  70  N.  E.  1094;  People  v.  Burk- 
halter,  247  HI.  600,  93  N.  E.  379. 

l»  In  re  Dessert,  154  Wis.  320,  142  N.  W.  647. 

(642) 


Chap.  31]  INHERITANCE  TAX.  §  399 

notice  be  sooner  revoked.  Failure  to  serve  notice 
or  to  defer  delivery  when  it  is  ordered  renders  the 
party  holding  the  securities  liable  for  the  tax  in  case 
one  is  levied.20 

§  399.    Property  liable  for  taxation. 

All  real  estate  passing  by  will,  the  statutes  of  inher- 
itance, or  by  deed  executed  in  contemplation  of  death, 
if  within  the  values  fixed  by  law,  is  subject  to  the  pay- 
ment of  the  tax,  whether  the  owner  was  a  resident  of 
the  state  or  otherwise.  The  interest  of  a  mortgagee 
in  real  estate,  or  his  interest  as  vendor  in  a  contract 
for  the  sale  of  land,  is  not  such  an  interest  as  will 
render  such  items  of  property  subject  to  the  tax  in  this 
state  where  they  were  continuously  in  the  possession  of 
a  nonresident  outside  of  the  state.  They  are  not  tax- 
able as  interests  in  lands  but  as  personalty.21 

The  clear  intent  of  the  statute  is  to  make  the  right 
of  succession  to  all  personal  property,  the  title  to  which 
must  be  traced  through  the  executor  or  administrator 
in  this  state,  and  also  such  personal  property  as  had 
an  actual  situs  in  this  state  at  the  date  of  the  death  of 
the  decedent,  though  he  be  a  nonresident,  liable  for 
a  tax.-2 

Urfder  the  Oregon  statute  only  suet  personal  prop- 
erty as  is  subject  to  the  jurisdiction  of  the  county 
court  for  distributive  purposes  can  be  taxed  in  that 
state,  except  where  decedent  was  domiciled  in  Oregon.23 

Tangible  property  of  a  deceased  nonresident,  such 
as  livestock,  merchandise,  grain,  or  even  a  bank  de- 

20  L.  o.  L.,  §  1201. 

21  Dodge  County  v.  Burns,  89  Neb.  534,  131  N.  W.  922. 

22  Rev.   Stats.,  c.   69,   §  334,   [6622]. 

23  L.  0.  L.,  §  1228. 

(643) 


§  399  PROBATE  AND  ADMINISTRATION.          [Chap.  31 

posit,  are  subject  to  a  tax  here,24  as  are  also  notes, 
bonds,  mortgages  and  similar  securities  in  the  hands 
of  a  deposit  company,  or  of  an  agent  for  purposes  of 
collection  and  reinvestment,  if  actually  in  this  state 
at  decedent's  death.25 

Shares  of  stock  in  a  Nebraska  corporation  have  a 
situs  under  the  law  in  this  state,  can  only  be  trans- 
ferred by  virtue  of  the  laws  thereof,  and  it  has  been 
held  are  taxable  here.26  Corporate  bonds  are  taxable 
where  the  decedent  last  lived,  and  hence  those  owned 
by  a  foreign  estate  would  not  be  taxable  here  unless 
actually  within  the  state.27 

Payment  of  the  tax  in  one  state  is  no  defense  to  a 
proceeding  under  the  laws  of  another  state  for  the  col- 
lection of  a  tax  on  such  property  as  is  or  was  at  dece- 
dent's death  actually  in  the  state  where  such  proceed- 
ing is  pending.28 

The  situs  of  devised  property  under  the  law  is  fixed 
as  of  the  date  of  the  death  of  the  decedent.  No  agree- 
ment between  the  devisees  for  the  conveyance  of  a 
part  of  the  land  to  a  claimant  in  satisfaction  of  his 
demand  in  any  manner  affects  its  liability  for  the  tax,29 
nor  can  a  personal  representative  avoid  payment  of 
the  tax  by  any  transfer  of  the  assets,  or  applying  them 

24  Blackstone  v.  Miller,  183  U.  S.  202,  47  L.  Ed.  444. 

25  In  re  Stanton's  Estate,  142  Mich.  491,  105  N.  W.  1122. 

26  Kountz  v.  Douglas  County,  84  Neb.  596,  121  N.  W.  593;   Gardner 
T.  Carter,  74  N.  H.  507,  69  Atl.  939. 

27  In  re  Clinch,  180  N.  Y.  300,  73  N.  E.  85;   Frothingham  v.  Shaw, 
175  ;Mass.  59,  55  N.  E.  623. 

28  Douglas  County  v.  Kountz,  84  Neb.  506,  121  N.  W.  593;  McCurdy 
v.  McCurdy,  197  Mass.  248,  83  N.  E.  881. 

29  Sanford  v.  Saunders  County,  90  Neb.  410,  133  N.  W.  870. 

(644) 


Chap.  31]  INHERITANCE  TAX.  §  400 

in  the  payment  of  the  shares  of  parties  entitled  to  an 
exemption  instead  of  those  which  are  not.80 

In  Oregon  the  tax  is  assessed  on  the  market  value 
of  a  foreign  estate  remaining  after  the  payment  of 
such  debts  and  expenses  as  are  chargeable  to  it  under 
the  laws  of  that  state.  If  the  executor,  administrator 
or  trustee  in  such  foreign  state  files  with  the  clerk  of 
the  court  having  ancillary  jurisdiction,  and  with  the 
state  treasurer,  duly  certified  statements,  exhibiting 
the  true  market  value  of  the  entire  estate  of  the  dece- 
dent owner,  and  the  indebtedness  for  which  said  estate 
has  been  adjudged  liable,  fully  attested  by  the  judge  of 
the  court  having  original  jurisdiction,  the  beneficiaries 
shall  be  entitled  to  have  deducted  such  proportion 
of  the  said  indebtedness  of  the  decedent  from  the  value 
of  the  property  as  the  value  of  the  property  within 
this  state  bears  to  the  value  of  the  entire  estate.31 

"Whenever  a  decedent  appoints  one  or  more  trustees 
or  executors,  and  in  lieu  of  their  allowance  or  commis- 
sion makes  a  bequest  or  devise  of  property  to  them, 
which  would  otherwise  be  liable  for  the  tax,  or  ap- 
points them  residuary  legatees,  and  said  bequests, 
devises  or  residuary  legacies  exceed  what  would  be  a 
reasonable  compensation  for  their  services,  such  excess 
shall  be  liable  for  the  tax,  and  the  court  having  juris- 
diction of  his  accounts,  upon  its  own  motion  or  on 
application  of  the  state  treasurer,  shall  fix  such  com- 
pensation.32 

§  400.    Jurisdiction  of  the  county  court  over  inherit- 
ance taxes. 

The  county  court  of  the  county  in  which  the  estate 
is  being  administered  or  of  which  deceased  was  a  resi- 

30  In  re  Kamsdijl,  190  N.  Y.  492,  83  N.  E.  584. 

31  L.  O.  L.,   §  1229. 

32  L.  0.  L.,  §  1204. 

(645) 


§  400  PROBATE  AND  ADMINISTRATION.          [Chap.  31 

dent,  or  if  a  nonresident  of  the  county,  in  which  the 
estate  is  located,  has  jurisdiction  to  hear  and  determine 
all  questions  relating  to  inheritance  taxes,  and  the 
court  first  acquiring  jurisdiction  hereunder  shall  re- 
tain the  same  to  the  exclusion  of  every  other.33 

It  is  the  duty  of  the  county  treasurer  to  see  that  no 
property  liable  for  the  payment  of  an  inheritance  tax 
goes  clear.  The  judge  and  county  clerk  are  required 
once  every  three  months  to  make  a  statement  in  writ- 
ing to  him  of  the  party  from  which  or  the  party  from 
whom  they  have  reason  to  believe  such  tax  is  due  and 
unpaid.34 

Whenever  any  real  estate  of  which  the  decedent  may 
be  seised  shall  pass  to  any  body  corporate,  or  to  any 
person  or  persons,  or  in  trust  for  them  or  some  of 
them,  it  shall  be  the  duty  of  the  executor,  adminis- 
trator or  trustee  of  such  decedent  to  give  information 
thereof  in  writing  to  the  treasurer  of  the  county 
wherein  the  real  estate  is  situated  within  six  months 
after  they  undertake  the  execution  of  their  expected 
duties,  or  if  the  facts  shall  not  be  known  within  that 
period,  within  one  month  after  the  same  shall  have 
come  to  their  knowledge.35 

If  the  county  treasurer  has  reason  to  believe  that  an 
estate  is  liable  for  such  tax,  he  should  notify  the  county 
attorney,  who  is  required  to  proceed,  to  enforce  the 
same  and  represent  the  county  in  all  proceedings  for 
its  assessment  and  collection.  The  first  step  is  the 
appointment  of  an  appraiser  to  determine  the  value 
of  the  property,  which  appointment  may  be  made  by 

83  Rev.  Stats.,  c.  69,  §  346,  [6634]  ;  -L.  O.  L.,  §  1205. 

34  Rev.  Stats.,  c.  69,  §  349,  [6637]. 

35  Rev.  Stats.,  c.  69,  §  340,  [6628]. 

(646) 


Chap.  31]  INHERITANCE  TAX.  §  401 

the  judge  on  his  own  motion,  or  on  application  of  an 
interested  party  or  the  county  attorney. 

It  is  the  duty  of  the  county  judge  within  ten  days 
after  the  filing  of  the  will,  or  the  application  for  letters 
testamentary  or  of  administration,  if  in  his  opinion  the 
estate  is  subject  to  the  payment  of  the  inheritance  tax, 
to  cause  the  county  clerk  to  send  to  the  state  treasurer 
a  certificate  of  the  filing  of  such  will  or  application 
for  the  grant  of  letters,  and  to  proceed  as  soon  as  prac- 
ticable thereafter  to  determine  the  value  of  the  prop- 
erty and  the  amount  of  the  tax  due  thereon.36  The 
statute  requiring  an  inventory  should  be  strictly  en- 
forced in  such  cases,  and  in  case  there  is  a  trustee  of 
the  estate,  he  should  file  his  inventory  within  thirty 
days  from  his  acceptance  of  his  trust,  but  on  applica- 
tion of  a  party  in  interest,  may  be  granted  further  time 
not  exceeding  three  months.37 

The  executor,  administrator  or  trustee  of  an  estate 
which  appears  to  be  liable  for  the  tax  must  at  least 
ten  days  prior  to  the  making  of  the  assessment  notify 
the  state  treasurer,  in  writing,  of  the  time  and  place 
fixed  for  making  the  same,  and  file  proof  of  service 
with  the  clerk  of  the  court.38  The  court  has  power  to. 
assess  the  tax  on  the  basis  of  the  first  inventory  and 
appraisement,  or  he  may  require  the  same  to  be  re- 
appraised.39 

§  401.    Duties  of  appraisers. 

The  order  appointing  an  appraiser  should  name  the 
parties  interested  or  claiming  an  interest  in  the  estate, 
all  of  whom  are  entitled  to  notice  of  the  time  and  place 
fixed  for  the  appraisement,  and  it  may  also  direct  the 

W  L.  O.  L..  §  1206. 
*7  L.  0.  L.,  §§  1207,  1208. 
38  L.  O.  L.,  §  1209. 
8»  L.  O.  L.,  §  1210. 

r(647) 


§  401  PBOBATE  AND  ADMINISTRATION.         [Chap.  31 

appraiser  to  find  the  present  value  of  life  estates, 
annuities,  and  other  matters  involved  in  the  assess- 
ment of  the  tax. 

The  appraiser  is  required  to  give  notice  by  mail  to 
such  persons  as  the  court  may  direct  of  the  time  and 
place  fixed  for  making  the  appraisement.  He  may  be 
authorized  to  issue  subpoenas  and  to  compel  the  at- 
tendance of  witnesses.  The  testimony  must  be  taken 
under  oath,  and  reduced  to  writing  and  filed  with  his 
report  in  the  county  court.  The  appraiser  determines 
from  such  evidence  the  value  of  the  property,  makes 
findings  on  such  other  questions  submitted  to  him,  and 
files  the  same  with  statement  of  fees  with  the  court. 

All  costs  are  paid  by  the  county  treasurer  out  of  any 
funds  he  may  have  in  his  hands  on  the  certificate  of 
the  county  judge.40 

Form  No.  172. 

APPOINTMENT  OF  INHERITANCE  TAX  APPRAISER. 
[Title  of  Cause  and  Court.] 
To  C.  D.  : 

You  are  hereby  appointed  appraiser  under  the  inheritance  tax  law 
of  the  estate  of  A.  B.,  deceased,  late  of  said  county,  and  are  directed 
to  appraise  it  at  its  fair  market  value  the  following  described  real 
estate  and  personal  property  of  said  A.  B.,  together  with  such  other 
property  of  said  A.  B.  as  you  may  find  he  died  seised  or  possessed  of, 
said  value  to  be  fixed  as  of  the  date  of  the  death  of  said  A.  B.,  to  wit, 


You  are  also  directed  to  fix  and  determine  the  value  of  all  annuities 
,and  life  estates  created  under  the  terms  of  the  will  of  said  A.  B.  and 
the  present  value  of  the  homestead  interest  of  C.  B.,  widow  of  said  A.  B. 

You  are  directed  to  fix  a  time  and  place  for  making  said  appraisement, 
and  forthwith  notify  E.  P.,  whose  postoffice  address  is  -  ,  etc., 
they  being  persons  having  or  claiming  to  have  an  interest  in  said  prop- 

40  Rev.  Stats.,  c.  69,  §  344,  [6632]. 

(648) 


Chap.  31]  INHERITANCE  TAX.  §  401 

erty,  of  the  time  and  place  fixed  by  you  for  making  said  appraisement. 
At  the  time  and  place  so  fixed  by  you,  you  are  directed  to  take  the 
testimony,  under  oath,  of  such  witnesses  as  may  be  necessary,  and  compel 
their  attendance.  From  such  evidence  and  from  your  inspection  of  said 
premises1,  you  will  make  a  report  of  the  fair  market  value  of  the  said 
property  of  said  estate  in  writing,  and  return  the  same,  together  with 
your  findings  on  the  other  matters  submitted  to  you  with  said  depositions, 
to  this  court. 

Witness  the  seal  of  said  court  this  day  of  • — ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

The  county  court  has  power  on  his  own  motion,  if  no 
inventory  has  been  filed,  or  if  the  one  on  record  ap- 
pears to  be  insufficient  or  inadequate,  or  on  application 
of  the  state  treasurer  or  an  interested  party,  to  appoint 
one  or  more  persons  as  appraisers  to  appraise  the  true 
value  of  the  property  embraced  in  any  inheritance,  de- 
vise, bequest  or  legacy,  subject  to  the  payment  of  any 
tax  imposed  by  this  act.41  Other  matters,  such  as  the 
values  of  life  estates  and  annuities,  may  also  be  sub- 
mitted to  him  or  them. 

The  order  should  also  fix  the  time  and  place  when 
the  appraisement  will  be  made.  Notice  thereof  is  re- 
quired to  be  given  by  the  county  clerk  to  the  state 
treasurer,  and  to  all  persons  known  to  have  a  claim  or 
interest  in  the  inheritance,  devise,  bequest,  legacy  or 
gift  to  be  appraised,  and  to  such  other  persons  as  the 
court  may  direct.  Such  notice  shall  be  given  by  mail. 
The  fees  of  the  appraisers  are  fixed  at  three  dollars 
per  day  and  actual  and  necessary  traveling  expenses, 
payable  by  warrant  on  the  state  treasurer,  issued  on 
the  certificate  of  the  county  judge,  and  payable  from 
the  inheritance  tax  fund.  In  all  other  respects  the 
powers  and  duties  of  the  appraisers  are  the  same  as  ID 
Nebraska.42 

«  L.  o.  L.,  §  1211. 

42  L.  0.  L.,  §  1213. 

'(649) 


§  402  PROBATE  AND  ADMINISTRATION.         [Chap.  31 

§  402.    Duties  of  appraisers — Concluded. 

The  notice  should  fix  the  time  far  enough  in  advance 
of  the  hearing  to  give  both  parties  sufficient  oppor- 
tunity to  prepare  their  evidence.  Its  service,  in  the 
manner  directed  by  the  court,  is  jurisdictional.43 

Neither  real  estate  nor  personal  property  should  be 
appraised  on  the  basis  of  assessment  for  other  taxes, 
but  their  value  should  be  ascertained  and  determined 
by  the  evidence  of  competent  witnesses.44  The  stat- 
ute contemplates  that  the  appraiser  may,  if  he  thinks 
necessary,  personally  examine  real  estate  and  take 
testimony  at  different  places  as  will  be  most  accessible, 
and  convenient  for  the  witnesses,  thus  avoiding  ex- 
cessive mileage.  The  statute  does  not  give  the  county 
judge  power  to  appoint  an  appraiser  for  each  county 
in  which  land  is  situated  when  the  application  is  filed. 

In  a  few  counties  such  practice  prevails,  the  apprais- 
ers in  the  outside  counties  simply  appraising  the  lands 
in  their  counties.  This  may  save  money  for  the  road 
fund  but  the  statute  does  not  warrant  it.  An  ap- 
praiser may  appraise  the  personalty  and  the  real  estate 
in  his  county,  file  a  report  thereon  and  resign  and  per- 
mit another  to  be  appointed  in  the  other  county. 

Corporate  stock  which  has  a  regular  market  value 
or  which  is  listed  on  a  stock  exchange  should  be  ap- 
praised at  what  it  was  selling  for  at  the  date  of  the 
death  of  the  decedent.45  In  appraising  unlisted  stocks 
or  shares  in  close  corporations,  the  value  of  the  plant 

«  In  re  Backhouse,  185  N.  Y.  544,  77  N.  E.  1181. 
«  In  re  Westurn,  152  N.  Y.  43,  46  N.  E.  315;  In  re  McGhee,  105 
Iowa,  9,  74  N.  W.  695. 

45  Walker  v.  People,  192  111.  106,  61  N.  E.  489. 

(650) 


Chap.  31]  INHERITANCE  TAX.  §  402 

and  other  property,  its  earning  capacity  and  general 
condition  is  about  the  best  evidence  of  their  value.48 
It  is  doubtful  whether  the  appraiser  has  power  to 
compel  such  corporation  to  produce  its  books  and 
papers  for  the  purpose  of  fixing  the  value  of  its  stock.47 
The  value  of  a  life  estate  is  usually  considered  the 
present  value  of  an  annuity  of  the  income  of  the  prop- 
erty as  ascertained  from  mortality  and  annuity  tables.48 
The  present  value  of  the  remainder  is  determined  by 
deducting  the  present  value  of  the  annuity  from  the 
whole  value  of  the  property.49 

The  Oregon  statute  requires  all  such  inheritances, 
devises,  bequests  or  gifts  to  be  appraised  at  their  full 
and  true  value  immediately  upon  the  death  of  the  dece- 
dent, or  as  soon  thereafter  as  may  be  practicable;  pro- 
vided that  when  the  same  shall  be  of  such  a  nature  that 
its  full  and  true  value  cannot  be  ascertained  at  such 
time,  it  shall  be  appraised  in  like  manner  when  such 
value  first  becomes  ascertainable.  The  value  of  every 
future,  contingent  or  limited  estate,  income,  interest 
or  annuity  dependent  upon  any  life  or  lives  in  being 
shall  be  determined  by  the  rules  or  standards  of  mor- 
tality, and  of  value  commonly  used  by  actuaries'  com- 
bined experience  tables,  except  that  the  rate  of  interest 
on  computing  the  present  value  of  all  future  or  con- 
tingent interests  or  estates  shall  be  four  per  cent  per 
annum  interest.50 

46  In  re  Jones,  172  N.  Y.  675,  65  N.  E.  570;  In  re  Palmer,  183  N.  Y. 
238,  76  N.  E.  16. 

47  State  v.  Carpenter,  129  Wis.  189,  108  N.  W.  641. 

48  Howe  v.  Howe,  179  Mass.  546,  61  X.  E.  225. 

«  State  v.  Pabst,   139  Wis.  561,  121  N.  W.  351  j  People  v.  Nelms, 
241  111.  571,  89  X.  E.  683. 
«>  L.  O.  L.,  §  1212. 

(651) 


§  402  PBOBATE  AND  ADMINISTRATION.         [Chap.  31 

Form  No.  173. 


[Title  of  Cause  and  Court.] 

I  herewith  submit  my  report  of  the  appraisement  of  said  estate  aa 
follows: 

Pursuant   to   the   order   of   appointment   which   is   herewith   returned, 

on  the  day  of  • ,  19 — ,  I  fixed  19 — ,  and  my  office 

in  the  city  of  ,  as  the  time  and  place  for  making  said  appraise- 
ment, and  gave  notice  of  the  same  to  C.  D.,  E.  F.,  and  G.  H.,  by  letter 

addressed  to  said  C.  D.,  E.  F.,  and  G.  H.,  at  ,  copies  of  which 

said  letters  are  herewith  returned  marked  "Ex.  A,"  "Ex.  B,"  and 
"Ex,  C."  I,  on  the  same  day,  issued  subpoena  for  G.  H.  and  C.  F.  and 
delivered  same  to  the  sheriff  of  county  for  service.  Said  sub- 
poena was  on  the day  of ,  19 — ,  returned  indorsed  as  fol- 
lows: [Return  of  officer.] 

'  6n  the  said  day  of  ,  19 — ,  I  proceeded  to  take  testi- 
mony concerning  the  value  of  said  estate  within  the  state  of  Nebraska. 
G.  H.,  administrator,  appeared  in  person  and  by  A.  B.,  his  attorney. 
It  was  stipulated  and  agreed  that  the  testimony  of  all  witnesses  taken 
in  this  county  be  taken  in  shorthand  by  M.  B.,  a  stenographer,  reduced 
to  writing  by  him,  and  need  not  be  signed  by  said  witnesses.  Testimony 
of  G.  H.  and  C.  F.  taken.  Said  depositions  are  herewith  returned  marked 
"Ex.  C"  and  "Ex.  D."  [If  hearing  adjourned,  state  time  and  place  and 
issue  and  return  of  subpoenas,  if  any.]  [If  real  estate  was  viewed  by 
appraiser,  so  state,  giving  date.] 

From  said  depositions  and  an  inspection  of  said  property,  I  find  the 
reasonable  market  value  of  said  estate  on  the  date  of  the  death  of  said 

decedent,  to  wit, ,  19 — ,  to  be  the  sum  of dollars  ($ ), 

as  is  hereinafter  more  particularly  set  forth. 

IL 

Real  estate  in  county: 

[Give  specific  description  of  each  lot  or  tract  in  county  of  which  dece- 
dent died  seised  and  valuation  of  each,  and  foot  the  column.] 

in. 

Personal  estate  in  county: 

[Give  valuation  of  each  item  of  personal  property  subject  to  general 
taxation  in  the  county,  or  was  within  the  county.] 

(-652) 


Chap.  31] 


INHERITANCE  TAX. 


§402 


IV. 

I  find  the  fair  market  value  of  the  estate  of  said  A.  B.  located  in 

•aid  county,  to  be  the  sum  of dollars  ($ ). 

[Make  similar  separate  findings  for  property  in  each  county.] 


V. 

That  the  following  described  premises, 


-,  were  at  the  date  of  the 


death  of  said  A.  B.  occupied  by  him  and  his  wife,  C.  B.,  as  a  homestead, 
and  that  the  clear  market  value  of  the  homestead  interest  of  said  C.  B. 

in   said  last  above-described  premises  is  the  sum  of  $ ,  and  that 

the  value  of  the  statutory  share  of  said  C.  B.  in  said  entire  estate  is  the 

sum  of . 

Dated  this day  of ,  19 — . 

Bespectfully  submitted, 


Statement  of  Costa. 
Stenographer's  fees 

Subpoenas  

Mileage  miles 

Postage  

Sheriff's   fees ! 

Witness  fees: 

miles.  .! 

miles.. j 


Appraiser. 

Time     Necessarily     Employed     in 
Making  Appraisement. 

Notices 1  day 

Taking  testimony " 

Viewing  land " 

Hearing    argument,    findings 
and  report " 


Total  costs $ 

[If  the  appraiser  was  instructed  to  find  the  value  of  the  shares  of  the 
heirs  and  the  amount  due  each  county,  insert  after  V:] 

VI. 

I  find  from  the  record  and  files  in  said  estate  that  the  debts  of  said 
estate  and  the  costs  and  expenses  of  administration  amount  to  the  sum 

of  $ ,  and  that  the  total  value  of  said  estate  to  be  distributed  to 

the  widow  and  heirs  at  law  is  the  sum  of  $ . 

VII. 

The  following  named  persons  are  heirs  of  said  A.  B.  and  their  relation- 
ship to  him,  the  clear  market  value  of  their  shares  or  interests  in  said 

(653) 


§  402  PROBATE  AND  ADMINISTRATION.         [Chap.  31 

estate,  the  sums  exempt  from  payment  of  an  inheritance  tax,  and  the 
amount  of  the  tax  due  from  each  are  as  follows: 

Value  of 
Names.  Eolation.  Share.  Exemption. 


VIII. 

That  the  shares  of  said  tax  due  the  various  counties  in  which  the  assets 
of  said  estate  are  situated  are  as  follows: 

Share.                   Percentage.                      Tax. 
• county.  $ %  $ 


Total,       $ 100% 


Form  No.  174. 

REPORT  OF  APPRAISERS—REMAINDERS,  CHARGES  AND  LIFE 

ESTATES. 

The  will  was  substantially  as  follows :  Devise  in  fee  including  home- 
stead and  bequest  of  specific  property  to  wife;  bequest  to  son  subject  to 
debts,  expenses,  etc.;  devise  to  son  for  life  with  remainder  to  a  corpo- 
ration; devise  to  another  party  subject  to  two  legacies.  The  bequest  to 
the  son  was  more  than  sufficient  to  pay  the  charges  against  it. 

[Form  No.  173  to  VII.] 

VIL 

That  by  the  terms  of  said  will  there  was  devised  to  C.  B.,  the  widow 
of  said  decedent,  the  following  described  real  estate:  [describe  lands] 
of  the  clear  market  value  of  $ ,  and  also  bequeathed  to  her  per- 
sonal property,  to  wit:  [describe  personalty]  of  the  clear  market  value 

of  $ .     That  the  clear  market  value  of  the  interest  of  the  said  C.  B. 

in  said  estate  is  the  sum  of  $ ,  which  is  exempt  from  the  payment 

of  an  inheritance  tax. 

VIII. 

That  by  the  terms  of  said  will  there  was  bequeathed  to  F.  B.,  a  son 
of  said  decedent,  personal  property,  to  wit:  [describe  personalty]  of  the 

(654) 


Chap.  31] 


INHERITANCE   TAX. 


402 


clear  market  value  of  $ ,  and  also  devised  to  him  an  estate  for  life 

in  the  following  described  lands:    [describe  lands].     That  said  F.  B.  is 

years  of  age  and  the  clear  market  value  of  said  life  estate  is  the 

sum  of  $ ,  and  that  the  clear  market  value  of  the  interest  of  said 

F.  B.  in  said  estate  is  the  sum  of  $ ,  of  which  said  amount  the 

sum  of  $10,000  is  exempt  from  the  payment  of  an  inheritance  tax. 

IX. 

That  the  remainder  in  said  real  estate  in  finding  VII,  above  described, 

•was  devised  to ,  a  corporation,  and  the  clear  market  value  of  said 

remainder  is  the  sum  of  $ ,  no  part  of  which  is  exempt  from  the 

payment  of  an  inheritance  tax. 

X. 

That  by  the  terms  of  said  will  there  was  devised  to  E.  F.,  a  nephew 
•of  said  decedent,  the  following  described  real  estate:  [describe  lands] 

of  the  value  of  $ ,  subject,  however,  to  the  payment  of  a  legacy  in 

the  sum  of  $5,000  to  one  G.  H.,  also  a  nephew  of  said  decedent,  and 
.also  with  the  payment  of  a  legacy  of  $2,000  to  L.  M.;  that  the  interest 

of  said  E.  F.  in  said  estate  is  of  the  value  of  $ ,  of  which  said 

amount  the  sum  of  $2,000  is  exempt  from  the  payment  of  an  inheritance 
tax;  that  $2,000  of  the  legacy  to  said  G.  H.  is  exempt  from  the  pay- 
ment of  an  inheritance  tax,  and  no  part  of  the  legacy  to  L.  M.  is  exempt 
;from  the  payment  of  such  tax. 

XL 

The  following  named  persons  are  devisees  and  legatees  of  said  A.  B., 
and  the  clear  market  value  of  the  respective  interests  of  each,  the  rate  of 
taxation,  and  the  amount  of  tax  due  from  each  to  the  respective  counties 
in  this  state  in  which  such  property  is  situated  are  as  follows: 


Names. 


Values.      I    Rate.  I    Exemption. 


Tax. 


County. 


Total 
Tax. 


F.  B. 
F.  B. 


E.  F. 
E.  F. 


G.  H. 
L.  M. 


1% 


2% 
2% 


2% 
2% 

2% 


$10,000 


$  2,000 

$  2,000 

None 

None 


[Balance  as  in  previous  form.] 


1(655) 


§  402  PROBATE   AND  ADMINISTRATION.          [Cliap.  31 

Any  appraiser  who  takes  any  fee  or  reward  from  an 
executor,  administrator,  trustee,  legatee  or  next  of 
kin,  or  other  interested  person,  is  deemed  guilty  of 
a  misdemeanor,  and  subject  to  fine  and  imprisonment.51 

Such  personal  representative  must  within  ten  days 
after  an  appraisement  or  reappraisement,  and  before 
payment  to  the  legatees  or  any  party  entitled  to  a  bene- 
ficial interest  therein,  make  and  render  to  the  state 
treasurer  a  copy  of  the  inventory  and  appraisement, 
duly  certified  as  such  by  the  clerk  of  the  court,  and 
also  make  and  file  with  the  state  treasurer  a  duplicate 
list  or  statement  of  the  amount  of  such  legacy  or  dis- 
tributive share,  together  with  the  amount  of  tax  which 
has  accrued  or  which  will  accrue.  Such  list  must  con- 
tain the  name  of  each  and  every  person  entitled  to  any 
beneficiary  interest  in  the  estate,  together  with  the 
clear  market  value  of  such  interest  as  found  and  deter- 
mined by  the  court,  and  must  be  under  oath.52 

Within  thirty  days  after  the  assessment  and  deter- 
mination of  the  tax,  the  state  treasurer  may  file  objec- 
tions thereto  in  writing  and  apply  for  a  reassessment. 
Ten  days'  notice  must  be  given  all  parties  interested, 
and  on  the  hearing  evidence  may  be  introduced  in  sup- 
port or  opposition  thereto.  The  court  may  either  sus- 
tain the  appraisement  or  set  it  aside  and  determine  the 
value  of  the  property.  The  evidence  must  be  taken 
and  filed  the  same  as  that  taken  by  the  appraiser.  An 
appeal  to  the  circuit  court  may  be  made  by  the  state 
treasurer  or  any  party  interested  in  the  estate,  which 
is  heard  in  the  same  manner  as  appeals  in  suits  in 
equity.53 

J»  Eev.  Stats.,  c.  69,  §  345,  [6633]  j  L.  0.  L.,  §  1232. 

52  L.  O.  L.,  §  1209. 

53  L.  O.  L.,  §  12  Id. 

(656), 


Chap.  31]  INHERITANCE   TAX.  §  403 

§  403.    Assessment  of  the  tax, 

Upon  the  filing  of  the  report  of  the  appraiser,  the 
court  forthwith  determines  and  fixes  the  cash  values 
of  all  estates,  annuities  and  life  estates  or  terms  of 
years  growing  out  of  said  estates  and  the  tax  for  which 
the  same  is  liable,  and  gives  immediate  notice  through 
the  mails  to  all  parties  interested  therein.54  The 
values  as  found  by  the  appraiser  are  the  basis  for  the 
assessment,  and  he  cannot  change  and  modify  them.55 
Findings  or  other  questions  submitted  may  be  modi- 
fied. Unless  he  had  previously  referred  the  matter 
to  the  appraiser,  he  should  ascertain  from  the  records 
the  debts  against  the  estate,  and  the  costs  and  expenses 
of  administration  as  near  as  the  same  can  be  done,56 
and  deduct  the  total  from  the  gross  value  of  the  estate, 
or  from  the  devises  and  legacies  chargeable  therewith. 
The  shares  of  the  heirs,  devisees  or  legatees  in  this 
balance  is  determined,  and  the  amounts  remaining 
after  deducting  the  exemptions  are  the  bases  of  the 
assessment.57 

It  has  been  held  that  a  devisee  cannot  defeat  the  tax 
by  a  showing  that  the  gift  to  him  was  in  satisfaction 
or  payment  of  a  debt  due  him  from  the  estate.58 

It  is  impossible  for  either  court  or  appraiser  to  de- 
termine the  exact  amount  due  until  the  final  account 
of  the  executor  or  administrator  is  allowed,  except 
where  no  administration  is  had  in  this  state.  The  ap- 
praiser is  seldom  appointed  until  the  year  allowed  for 

54  Rev.  Stats.,  c.  69,  §  344,   [6632]  ;   L.  O.  L.,  §  1214. 

55  Weston  v.  Goodrich,  86  Hun  (N.  Y.),  194. 

56  In  re  Gihon,  169  N.  Y.  443,  62  N.  E.  561. 

57  Callahan  v.  Woodridge,  171  Mass.  595,  51  N.  E.  176. 

58  In  re  Gould's  Estate,  156  N.  Y.  423,  51  N.  E.  287. 

42— Pro.  Ad. 


§  403  PBOBATE   AND  ADMINISTRATION.         [Chap.  31 

the  payment  of  the  tax  without  interest  has  nearly 
expired,  and  if  there  is  an  overpayment,  it  may  be  re- 
covered. If  there  is  a  shortage,  the  road  fund  is  the 
loser. 

Form  No.  175. 

ORDER  ASSESSING  INHERITANCE  TAX. 
[Title  of  Cause  and  Court.] 

Whereas,  C.  D.,  appraiser,  has  filed  his  report  of  th»  clear  market 
value  of  all  the  estate,  real  and  personal,  of  which  said  A.  B.  died 
seised,  situated  within  the  state  of  Nebraska,  and  which  is  liable  for 
the  payment  of  an  inheritance  tax  in  said  state,  and  it  appearing  there- 
from that  the  clear  market  value  of  the  estate  of  said  A.  B.  at  the  date 
of  his  death,  situated  within  the  state  of  Nebraska,  and  which  may  be 

liable  for  the  payment  of  an  inheritance  tax,  is  $ ,  as  follows: 

Personal  estate  in  county  of  the  value  of 

Personal  estate  in  county  of  the  value  of 


Description. 

Value1. 

$  

Description. 

Value. 

That  the  following  described  property  was  the  homestead  of  A.  B.  at 
the  date  of  his  death,  ,  and  that  the  present  value  of  the  home- 
stead interest  of  C.  B.,  the  widow  of  said  A.  B.,  therein  is  the  sum  of 

$ ,  and  that  the  right  of  succession  to  the  same  is  not  liable  for 

the  payment  of  an  inheritance  tax. 

I  find  from  said  report  and  the  records  and  files  in  the  matter  of 
said  estate  that  the  value  of  the  statutory  interest  of  said  C.  B.,  widow, 

in  said  estate  is  the  sum  of  $ ,  and  that  the  right  of  succession 

to  the  same  is  not  liable  for  the  payment  of  an  inheritance  tax. 

*I  find  that  J.  B.  is  a  son  of  said  A.  B.,  and  under  the  statute  takes 
by  inheritance  the  one-half  of  the  estate  of  said  A.  B.  remaining  after 
deducting  the  homestead  interest  and  statutory  share  of  said  C.  B.,  and 
that  the  clear  market  value  of  the  estate  so  inherited  by  him,  the  said 
C.  B.,  is  the  sum  of  $ ,  that  he  is  entitled  to  an  exemption  of 

(658) 


Chap.  31]  INHERITANCE   TAX.  §  403 

$10,000,  and  that  the  clear  market  value  of  the  property  so  inherited  by 
«aid  J.  B.,  the  succession  to  which  is  liable  for  the  payment  of  an 

inheritance  tax,  is  $ ,  and  that  the  tax  due  thereon  is  the  sum 

of  $ .     [Similar  findings  for  other  heirs.] 

I  find  that  %  of  said  tax  is  due  the  said  county  of ,  and 

that  %  of  said  tax  is  due  said  county  of  %,  and  that  the 

entire  tax  due  from  the  heirs  of  said  A.  B.  on  their  rights  of  succession 

to  his  said  estate  is  the  sum  of  $ . 

I  hereby  assess  a  tax  on  said  right  of  succession  of  said  A.  B.  in  the 

sum  of  $ ,  of  which  said  sum  $ is  payable  to  said  

county  and  $ to  county.     [Similar  findings  on  taxes  due 

from  other  heirs.] 

It  is  also  ordered  that  C.  D.,  appraiser,  be  allowed  the  sum  of  $ 

for  his  services,  and  that  the  following  parties  be  allowed  the  sums  set 
after  their  respective  names  for  their  fees  in  connection  with  said 
appraisement: 

C.   M.,   stenographer 

E.   F.,   witness 

"W.  D.,  constable 

and  that  said  costs  be  paid  by  the  county  treasurer  of county. 

Dated  this day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

Porm  No.  176. 

ORDER    ASSESSING    INHERITANCE    TAX,    REMAINDERS, 
CHARGES  AND  LIFE  ESTATES. 

[Follow  Form  No.  175  to  *.] 

I  find  that  by  the  terms  of  the  will  of  said  A.  B.  there  was  devised 

to  said  C.  B.  the  following  described  real  estate,  ,  of  the  clear 

market  value  of  $ ,  and  bequeathed  to  her  personal  property  of  the 

clear  market  value  of  $ ,  and  that  the  value  of  the  property  so 

devised  and  bequeathed  to  her  is  the  sum  of  $ and  is  less  than 

the  present  value  of  her  homestead  interest  and  of  her  statutory  share, 
should  she  elect  to  take  under  the  statute,  and  that  the  right  to  succeed 
to  said  property  under  said  devise  and  bequest  is  not  liable  for  the 
payment  of  an  inheritance  tax. 

I  find  that  by  the  terms  of  said  will  there  was  bequeathed  to  F.  B., 

a  son  of  decedent,  personal  property  of  the  clear  market  value  of  $ , 

all  situated  in  said  county  of  ,  and  that  there  was  devised  to 

iim  a  life  estate,  the  description  of  which  and  clear  market  values  are 

(659) 


§  403  PROBATE   AND  ADMINISTRATION.          [Chap.  31 

as  follows:  [Descriptions  and  values  by  counties  as  in  Form  No.  175, 
adding  another  column  giving  values  of  his  life  interest.]  That  the 
clear  market  value  of  the  interest  of  said  F.  B.  in  said  estate  is  the  sum 

of  $ •;"  that  he  is  entitled  to  an  exemption  of  $10,000,  and  that  the 

clear  market  value  of  the  property  so  devised  and  bequeathed  unto  said 
F.  B.,  the  right  to  the  succession  to  which  is  liable  for  the  payment  of 

an  inheritance  tax,  is  $ ,  and  the  tax  due  thereon  is  the  sum  of 

$ ,  of  which  said  amount  the  sum  of  $ is  due  and  payable 

to  the  county  treasurer  of  — county  and  $ to  the  county 

treasurer  of  county,  Nebraska. 

I  find  that  the  remainder  in  said  real  estate  devised  to  said  F.  B.  was 

devised  to  ,  a  corporation;   that   the  clear  market  value  of  said 

estate  of  remainder  is  the  sum  of  $ ,  no  part  of  which  is  entitled 

to  exemption,  and  that  the  tax  due  on  the  right  of  succession  to  the  same 

is  $- ,  of  which  said   amount  the   sum  of   $ —      -  is   due  — 

county  and  $ due county,  Nebraska.     [Similar  findings  for 

other  devisees  or  legatees.] 

I  hereby  assess  a  tax  on  the  said  right  of  succession  of  said  F.  B. 

to   property   situated  in  county   in   the  sum  of  $ —      -  and  to 

property  in  county  in  the  sum  of  $ .     [Similar  findings  as 

to  other  taxes.] 

It  is  hereby  ordered  that  C.  D.,  executor  of  said  estate,  be  and  he 
hereby  is  directed  to  retain  in  his  possession  from  the  said  legacy  to 

said   F.   B.   the   sum    of   $ ,   the   same   being   the   inheritance   tax 

thereon;   that  F.  B.  pay  to  said  executor  the  balance  of  said  tax,  the 

same  being  the  sum  of  $ ;  that  said  E.  F.  deduct  from  the  legacy 

to  said  G.  H.  which  was  charged  on  the  lands  devised  to  him  the  tax 
due  from  G.  H.  on  his  right  to  succession  to  his  said  legacy  in  the  sum 

of  $ ,  and  pay  the  same  to  said  C.  D.,  and  that  said  -       — ,  a 

corporation,  pay  to  said  C.  D.  the  tax  assessed  on  its  said  right  of 
succession. 

[Costs  as  in  previous  form.] 

When  a  tax  is  assessed  against  the  right  of  succes- 
sion to  property  in  two  or  more  counties,  the  exemption 
should  be  proportionately  deducted  from  the  values 
in  each.  One  county  ought  not  to  be  deprived  of 
money  for  its  road  fund  at  the  expense  of  another. 

Each  county  ought  to  pay  its  share  of  the  costs  of 
appraisement,  which  in  some  cases  can  be  done  by 
(660) 


Chap.  31]  INHERITANCE   TAX.  §  404 

apportioning  it  to  the  amount  of  tax  received  by  each. 
If  the  appraiser  in  the  home  county  resigns  after  ap- 
praising the  home  assets  and  other  appraisers  are  suc- 
cessively appointed  in  different  counties,  each  county 
should  pay  the  fees  and  costs  of  its  own  appraiser.  If 
he  takes  testimony  in  different  counties,  witness  and 
officers'  fees  should  be  charged  to  the  county  in  which 
the  testimony  was  taken,  and  his  mileage  and  a  part 
of  his  fee  is  also  a  proper  charge.  It  is  a  matter 
largely  in  the  discretion  of  the  court. 

§  404.    Appeals. 

The  statute  provides  that  any  person  dissatisfied 
with  the  appraisement  or  assessment  may  appeal  to  the 
county  court  of  the  proper  county  within  sixty  days 
after  making  and  filing  such  appraisement  or  assess- 
ment, conditioned  upon  giving  security  to  the  court 
to  pay  all  the  costs,  together  with  all  taxes  that  may 
be  fixed  by  the  court.59 

The  usual  practice  in  this  state  is  for  the  losing  party 
to  file  his  objections  to  the  appraisement  in  the  county 
court,  and  take  his  appeal  from  the  appraisement  or 
assessment  direct  to  the  district  court.60 

59  Rev.  Stats.,  c.  69,  §  344,   [6632]. 

60  See  Dodge  County  v.  Burns,  89  Neb.  534,  131  N.  W.  922;   In  re 
Sanford,   90  Xeb.  410,   133  N.  W.  870;   Strahan  v.  Wayne  County,   93 
Neb.  828,  142  N.  W.  878.     In  construing  a  statute  similar  to  our  own, 
the  New  York  court  of  appeals  holds  that  in  making  the  assessment  the 
judge  acts  as  a  ministerial  or  taxing  officer,  and  that  any  question  on 
the   liability  of  the  succession  to   the  property   for  the  payment  of  an 
inheritance  tax  must  be  brought  before  him  sitting  as  a  court  on  appeal. 
In  re  Wolf,  137  X.  Y.  205,  33  N.  E.  156;  Weston  v.  Goodrich,  86  Hun 
(X.  Y.),  154;  In  re  Costello,  189  X.  Y.  288,  82  X.  E.  139.     In  Douglas 
County  v.  Kountz,  84  Xeb.  506,  121  N.  W.  593,  an  appeal  was  taken 

(661) 


§  404  PBOBATE   AND  ADMINISTRATION.         [Chap.  31 

The  appeal  may  be  taken  by  any  party  interested, 
which  includes,  besides  heirs,  devisees  or  legatees,  the 
county,61  and  an  executor,62  but  not  an  administrator.63 

The  burden  of  proof  in  the  district  court  is  upon  the 
appellant  to  show  jurisdictional  defects  or  irregular- 
ities in  the  proceedings,  the  liability  or  nonliability  of 
the  succession  to  certain  property  to  the  tax,  or  that 
the  findings  of  values  are  not  supported  by  the  evi- 
dence.64 

Form  No.  177. 

BOND  ON  APPEAL  FROM  ASSESSMENT  OF  INHERITANCE  TAX. 
[Title  of  Cause  and  Court.] 

Whereas,  on  the  day  of  ,  19 — ,  an  order  of  said  court 

was  made  and  entered  assessing  an  inheritance  tax  in  the  sum  of 

dollars  on  the  right  of  C.  D.  to  take  the  following  described  real  estate 
as  a  devisee  of  said  A.  B.,  and  the  said  C.  D.  is  dissatisfied  with  said 
assessment  and  desires  to  appeal  therefrom  to  the  district  court  of  said 
county : 

Now,  therefore,  we,  C.  D.,  as  principal,  and  E.  F.  and  G.  H.,  as  sureties, 
do  hereby  undertake  unto  the  county  court  of  said  county  to  pay  all 
costs  of  said  appeal,  together  with  all  taxes  that  may  be  fixed  by  said 
district  court  thereon. 

to  the  district  court  from  an  order  of  the  county  court  overruling  a  de- 
murrer to  an  answer  to  an  application  for  the  appointment  of  an  ap- 
praiser. The  supreme  court  questioned  the  right  of  the  party  to  appeal, 
but  assumed  jurisdiction  for  the  purpose  only  of  determining  whether 
the  succession  to  the  property  was  subject  to  the  tax. 

61  Commonwealth's   Appeal,    128    Pa.    603,    13    Atl.    386.     See   Dodge 
County  v.  Burns,  89  Neb.  534,  131  N.  W.  922 ;  In  re  Culver's  Estate,  153 
Iowa,  461,  133  N.  W.  722. 

62  Humphreys  v.  State,  70  Ohio  St.  67,  70  N.  E.  957. 
«3  Commonwealth  v.  Coleman,  52  Pa.  468. 

64  state  v.  Kiler,  121  Iowa,  423,  96  N.  W.  952;  People  v.  Kelley,  218 
111.  509,  75  N.  E.  1038;  In  re  McPherson,  104  N.  Y.  306,  10  N.  E.  685; 
Ferry  v.  Campbell,  110  Iowa,  290,  81  N.  W.  604. 

(662) 


Chap.  31]  INHEBITANCE    TAX.  §  405 

This  obligation  shall  be  binding  on  the  heirs;  executors,  administrators 
and  assigns  of  the  parties  hereto. 

Dated  this day  of ,  19 — . 

(Signed)  C.  D. 
E.  F. 
G.  H. 

The  above  security  approved  by  me  both  as  to  form  and  sufficiency. 

Dated  this day  of ,  19—. 

(Signed)     J.  KM 
County  Judge. 

On  an  appeal  by  the  county  no  bond  is  necessary. 

Under  the  Oregon  practice,  an  appeal  also  lies  to  the 
circuit  court  from  all  final  orders,  judgments  or  decrees 
in  the  matter  of  assessing  the  tax,  which  are  heard 
and  tried  in  the  same  manner  as  appeals  in  suits  in 
equity.65 

§  405.    When  inheritance  tax  due. 

Taxes  on  the  right  of  succession  to  property  are 
due  and  payable  at  the  death  of  the  decedent,  and  in- 
terest at  the  rate  of  seven  per  cent  per  annum  shall 
be  charged  and  collected  therefrom  for  such  time  as 
they  are  not  paid;  provided  that  if  the  tax  is  paid 
within  one  year  from  the  accruing  thereof,  interest 
shall  not  be  charged,  and  if  the  executor,  administra- 
tor or  tnistee  does  not  pay  the  tax  within  one  year, 
he  shall  be  required  to  give  a  bond  for  the  payment  of 
the  same  with  interest.66  The  county  court  has  no 
power  to  remit  the  interest  on  the  tax,  and  if  it  is  not 
paid  within  the  year,  interest  from  the  date  of  dece- 
dent's death  to  date  of  payment  should  be  collected.67 

w  L.  o.  L.,  §  1224. 

«6  Rev.  Stats.,  c.  69,  §  336,  [6624]. 

67  Saunders  County  v.  Sanford,  90  Neb.  410,  133  N.  W.  870. 

(663) 


§  405  PEOBATE   AND  ADMINISTRATION.          [Chap.  31 

In  Oregon  the  inheritance  tax  is  due  and  payable 
eight  months  from  the  date  of  the  death  of  the  dece- 
dent, excepting  only  those  on  conditional  or  contingent 
devises  and  legacies,  which  are  due  and  payable  when 
the  party  beneficially  entitled  thereto  shall  come  into 
the  possession  thereof.68 

Any  person  or  body  corporate  succeeding  to  a  re- 
mainder, the  right  of  succession  to  which  is  chargeable 
with  the  tax,  may  elect  not  to  pay  the  same  until  they 
come  into  the  possession  and  enjoyment  of  it.  In  such 
case  such  persons  or  body  corporate  shall  give  a  bond 
to  the  state  of  Nebraska  in  a,  penal  sum  of  three  times 
the  amount  of  the  tax,  conditioned  for  the  payment 
of  the  tax  at  such  time  or  period  as  they  or  their  rep- 
resentatives may  come  into  the  actual  enjoyment  of  the 
property,  which  bond  shall  be  filed  with  the  clerk  of 
the  county  to  which  the  tax  is  payable.  They  are  also 
required  to  file  a  verified  return  of  the  property  and 
the  above  bond  within  one  year  from  the  death  of  the 
decedent,  and  may  renew  the  same  for  five  years.69 

Form  No.  178. 

BOND  OF  REMAINDERMAN  TO  SECURE  PAYMENT  OF  INHERIT- 
ANCE TAX. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and  E.  F., 

G.  H.,  and  L.  M.,  as  sureties,  all  of county,  Nebraska,  are  held 

and  firmly  bound  unto  the  state  of  Nebraska  in  the  penal  sum  of  - 
thousand  dollars,  for  which  payment  well  and  truly  to  be  made  we 
do   hereby   jointly    and    severally   bind    ourselves,    our   heirs,    executors, 
administrators,  and  assigns,  by  these  presents. 

Whereas,  by  the  terms  of  the  last  will  and  testament  of  A.  B.,  late 

of  said  county,   deceased,  which  said  will  was,  on  the  day   of 

,  19 — ,  admitted  to  probate  in  the  county  court  of  said  county,  and 

«8  L.  O.  L.,  §  1193. 

69  Rev.  Stats.,  c.  69,  §  335,  [6625];  L.  O.  L.,  §  1203. 

(664) 


Chap.  31]  INHERITANCE    TAX.  §  406 

letters  testamentary  granted  thereon  to  X.  T.,  a  devise  was  made  to 
C.  D.  of  the  following  described  real  estate,  subject  to  the  life  estate 
of  R.  S.  therein  [describe  real  estate],  and  the  fair  market  value  of  said 
devise  has  been  determined  to  be thousand  dollars,  and  the  inherit- 
ance tax  due  the  state  of  Nebraska  from  said  C.  D.  thereon  is  the  sum 

of  dollars,  and  said  C.  D.  is  desirous  of  deferring  payment  of 

the  same  until  he  enters  into  the  possession  thereof: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  C.  D.  shall  well  and  truly  pay  or  cause  to  be  paid  to  the  treasurer 

of  said   county  the   sum   of  dollars,   being  the   amount   of   said 

inheritance  tax,  together  with  interest  thereon  at  the  rate  of  seven  per 

cent  per  annum  from  the  day  of  ,  19 —  [date  of  death  of 

decedent],  to  the  date  of  payment,  and  shall,  at  the  request  of  the  county 
judge  of  said  county,  renew  this  obligation  within  five  years  from  its 
date,  then  this  obligation  to  be  null  and  void;  otherwise  to  be  and 
remain  in  full  force  and  effect. 

Dated  this day  of ,  19 — . 

(Signed)  C.  D. 
E.  P. 
G.  H. 
L.  M. 

I  hereby  approve  of  the  foregoing  bond,  both  as  to  form  and  sufficiency 
of  sureties. 

Dated  this day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

§  406.    Payment  of  inheritance  tax  by  executor,  ad- 
ministrator or  trustee. 

It  is  the  duty  of  the  executor,  administrator  or  trus- 
tee having  any  charge  or  trust  in  legacies  or  property 
for  distribution  to  deduct  the  tax  therefrom  before 
making  any  payments.  If  the  legacy  or  property  be 
not  money,  he  shall  collect  the  tax  thereon  upon  the 
appraised  value  thereof  from  the  legatee  or  person 
entitled  to  such  property,  and  he  shall  not  deliver  or 
be  compelled  to  deliver  any  specific  legacy  or  property 
subject  to  tax  to  any  person  until  he  shall  have  col- 

(665) 


§  406  PEOEATE   AND  ADMINISTRATION.          [Chap.  31 

lected  the  tax  thereon.  Whenever  any  such  legacy 
shall  be  charged  upon  or  payable  out  of  the  real  estate, 
the  heir  or  devisee,  before  paying  the  same,  shall 
deduct  such  tax  therefrom,  and  pay  the  same  to  the 
executor,  administrator  or  trustee,  and  the  same  shall 
remain  a  charge  upon  such  real  estate  until  paid,  and 
the  payment  thereof  shall  be  enforced  by  the  executor, 
administrator,  or  trustee  in  the  same  manner  that  the 
payment  of  said  legacies  might  be  enforced.  If,  how- 
ever, such  legacy  shall  be  given  in  money  to  any  per- 
son for  a  limited  period,  he  shall  retain  the  tax  upon 
the  whole  amount,  but,  if  it  he  not  in  money,  he  shall 
make  application  to  the  court  having  jurisdiction  of 
his  accounts  to  make  apportionment,  if  the  case  re- 
quires it,  of  the  sum  to  be  paid  into  his  hands  by  the 
legatees,  and  for  such  further  orders  relative  thereto 
as  the  case  may  require.70  The  personal  representa- 
tive of  a  decedent  has  full  power  and  authority  to  sell 
the  assets  of  the  estate  in  the  same  manner  as  for  the 
payment  of  debts  for  the  purpose  of  paying  this  tax.71 

All  inheritance  taxes  assessed  in  Oregon  are  pay- 
able to  the  state  treasurer,  and  if  paid  within  eight 
months  from  the  death  of  the  decedent,  are  subject  to 
a  discount  of  five  per  cent.  If  not  paid  within  eight 
months  from  the  time  they  accrue,  they  bear  interest 
at  eight  per  cent  from  the  time  they  become  due,  unless 
by  reason  of  claims  upon  the  estate,  necessary  litiga- 
tion or  other  unavoidable  delay,  they  cannot  be  deter- 
mined and  paid  within  the  time  provided,  in  which 
case  they  bear  six  per  cent  interest  from  the  date  they 
accrue  until  the  cause  of  the  delay  is  removed,  and 
eight  per  cent  thereafter,  and  in  all  cases  where  a  bond 
is  given  to  secure  their  payment,  interest  at  six  per 

70  Rev.  Stats.,  c.  69,  §  337,  [6625]  ;  L.  O.  L.,  §  1199. 

71  Rev.  Stats.,  c.  69,  §  338,  [6626] ;  L.  O.  L.,  §  1198. 

(666) 


Chap.  31]  INHERITANCE   TAX.  §  406 

cent  must  bs  paid.72  The  procedure  for  the  payment 
of  the  tax  to  the  state  treasurer  is  identical  with  that 
for  the  payment  of  the  same  tax  in  Nebraska  to  the 
county  treasurer,  and  the  tax  remains  a  lien  for  the 
same  period  of  time.73 

Inheritance  taxes  on  real  estate  are  payable  to  the 
treasurer  of  the  county  within  which  the  lands  are 
situated  and  those  on  personal  property  to  the  treas- 
urer of  the  county  in  which  the  property  was  subject 
to  general  taxation,  or  in  which  the  late  owner,  if  a 
resident  of  this  state,  resided.  Shares  of  stock  in 
Nebraska  corporations  owned  by  nonresidents  may  be 
taxed  in  the  county  where  the  corporation  has  its 
principal  business  office.74 

Every  sum  of  money  retained  by  any  executor  or 
administrator,  or  trustee,  or  paid  into  his  hands  for 
any  tax  on  any  property,  shall  be  paid  by  him  within 
thirty  days  thereafter  to  the  treasurer  of  the  proper 
county,  who  is  required  to  give,  and  every  such  repre- 
sentative shall  take,  a  receipt  for  the  same.75 

Whenever  any  foreign  executor  shall  assign  or 
transfer  any  stocks  or  loans  in  this  state  standing  in 
the  name  of  the  decedent  or  in  trust  for  the  decedent 
which  shall  be  liable  to  such  tax,  he  is  required  to  pay 
the  same  to  the  county  treasurer,  otherwise  the  tax 
shall  be  paid  by  the  corporation,  provided  it  has  knowl- 
edge before  the  transfer  of  the  stocks  or  loans  that 
they  are  subject  to  an  inheritance  tax.76 

Receipts  for  inheritance  taxes  should  state  on  what 
real  property,  if  any,  they  are  paid,  the  name  of  the 

72  L.  O.  L.,  §  1197. 

73  L.  O.  L.,  §§  1194-1196,  1198,  1199. 

74  Douglas  County  v.  Kountz,  84  Neb.  506,  121  N.  W.  593. 

75  Rev.  Stats.,  c.  69,  §  359,  [6627]. 

78  fiev.  Stats.,  c.  69,  §  342,  [6630];  L.  O.  L.,  5  1201. 

T(667) 


§  407  PKOBATE   AND  ADMINISTRATION".          [Chap.  31 

party  paying  the  same,  and  whether  or  not  in  full  pay- 
ment. A  certified  copy  of  the  same  may  be  obtained 
on  payment  of  a  fee  of  fifty  cents,  and  the  receipt  or 
copy  recorded  in  the  office  of  the  county  clerk  where 
the  lands  are  situated.77 

In  Oregon  such  receipts  can  be  obtained  from  the 
state  treasurer  on  payment  of  a  fee  of  twenty-five  cents 
and  recorded  with  like  effect  in  the  office  having  con- 
trol of  the  deed  records  of  the  county.77* 

The  tax  remains  a  lien  on  the  property  for  five 
years.78 

§  407.    Refunding  excess  or  erroneous  payments. 

When  any  debts  shall  be  proved  against  the  estate 
of  the  deceased  after  the  distribution  of  legacies  from 
which  the  inheritance  tax  has  been  deducted  in  com- 
pliance with  the'  statute,  and  the  legatee  is  required 
to  refund  any  portion  of  the  legacy,  a  proportion  of 
the  tax  shall  be  paid  to  him  by  the  executor  or  admin- 
istrator, or  by  the  county  treasurer,  if  it  has  been  paid 
to  him.79 

If  any  tax  has  been  paid  to  the  county  treasurer 
erroneously,  it  may  be  refunded  by  him  on  satisfactory 
proof  of  error  in  the  amount  of  the  same  if  applica- 
tion is  made  within  two  years  from  the  time  of  its 
payment.80 

Under  the  Oregon  practice,  the  time  within  which 
such  action  must  be  brought  is  fixed  at  three  years.81 

77  Rev.  Stats.,  c.  69,  §  352,  [6640]. 
77a  L.  O.  L.,  §§1220,  1221. 

78  Eev.  Stats.,  c.  69,  §  353,  [6641];  L.  0.  L.,  §1196. 

79  Rev.  Stats.,  c.  69,  §  341,  [6629]. 

80  Rev.  Stats.,  c.  69,  §  353,   [6631]. 

81  L.  O.  L.,  §  1200.     The  above  sections  of  the  statutes  clearly  refer 
to  cases  where  excessive  taxes  have  been  paid  by  reason  of  errors  of 

(668) 


Chap.  31]  INHERITANCE   TAX.  §  408 

§  408.    Action  for  recovery  of  tax. 

If  it  shall  appear  to  the  county  court  that  any  in- 
heritance tax  has  not  been  paid  according  to  law,  the 
county  court  shall  issue  a  summons  commanding  the 
person  or  corporation  liable  to  pay  such  tax  or  inter- 
ested in  such  property  to  appear  before  the  court  on  a 
certain  day,  not  more  than  three  months  after  date  of 
such  summons,  to  show  cause  why  such  tax  should 
not  be  paid.  The  proceedings,  practice  and  pleadings, 
and  the  hearing  and  determination  and  judgment  in 
said  court,  shall  be  the  same  as  now  provided  or  those 
which  may  be  hereafter  provided  in  probate  cases  in 
county  courts  in  this  state,  and  the  fees  and  costs 
in  such  cases  shall  be  the  same  as  in  probate  cases  in 
county  courts.82 

Under  the  Oregon  practice,  proceedings  for  the  en- 
forcement of  the  tax  are  commenced  on  the  applica- 
tion of  the  prosecuting  attorney  of  the  county  at  the 
request,  in  writing,  of  the  state  treasurer.  A  citation 
to  the  persons  liable  for  the  tax  is  issued  commanding 
them  to  appear  and  show  cause  before  the  court  on 
a  day  specified  not  more  than  thirty  days  from  its 
date,  unless  the  court  for  good  cause  grants  a  longer 
time,  why  the  tax  has  not  been  paid.  The  citation  is 
served  as  ordered  by  the  court.  If  it  shall  appear 
that  the  tax  is  due  and  payable  and  cannot  be  enforced 
under  the  provisions  of  the  inheritance  tax,  the  prose- 
cuting attorney  is  given  power  to  sue  for  the  same  in 
the  name  of  the  state.  The  costs  of  the  proceeding, 
if  the  county  judge  certifies  that  there  was  probable 
cause  for  instituting  it,  are  payable  by  a  warrant  on 

fact,  and  not  errors  of  law  in  determining  whether  or  not  the  property 
is  actually  liable  for  the  tax.     The  remedy  in  such  cases  is  clearly  by 
appeal. 
82  Eev.  Stats.,  c.  69,  §  347,  [6635]. 

(669) 


§  409  PROBATE   AND  ADMINISTRATION.          [Chap.  31 

the  inheritance  tax  fund  in  the  same  manner  as  the 
costs  of  appraisement.83 

Whenever  the  estate  charged  or  sought  to  be 
charged  is  of  such  a  nature  or  is  so  disposed  that  the 
liability  is  doubtful,  or  the  value  thereof  cannot  be 
ascertained  with  reasonable  certainty,  the  state  treas- 
urer may,  with  the  written  approval  of  the  attorney 
general,  setting  forth  the  reasons  therefor,  compromise 
with  the  beneficiaries  and  compound  the  tax,  subject 
to  the  approval  of  the  county  court.84 

§  409.    Inheritance  tax  records. 

The  records  of  inheritance  taxes  are  kept  separate 
from  the  other  records  of  the  estate  in  books  furnished 
by  the  secretary  of  state,  in  which  should  be  entered 
the  returns  made  by  the  appraiser,  the  cash  value  of 
annuities,  life  estates  and  terms  for  years,  and  other 
property  fixed  by  him  and  the  tax  assessed  thereon, 
and  the  amounts  of  any  receipts  for  payments  thereof 
filed  with  him.85  The  inheritance  tax  constitutes  a 
special  road  fund,  which  is  under  the  charge  of  the 
county  board. 

Form  No.  179. 

PETITION    OF    COUNTY    ATTORNEY    FOR    PAYMENT    OF    DE- 
LINQUENT INHERITANCE  TAX. 

In  the  County  Court  of County,  Nebraska. 

In  the  Matter  of  the  Estate  of  A.  B.,  Deceased. 

Your  petitioner,  R.  J.  S.,  county  attorney  of  said  county  of , 

and  acting  in  his  capacity  as  such  county  attorney,  respectfully  repre- 
sents unto  the  court  that  A.  B.,  late  a  resident  of  said  county,  departed 

this  life  at  the  village  of  ,  in  said  county,  leaving  a  last  will  and 

testament,  which  said  instrument  was,  on  the day  of ,  19 — , 

duly  admitted  to  probate  by  said  court,  and  that  letters  of  administra- 

83  L.  O.  L.,  §  1217. 

84  L.  O.  L.,  §  1222. 

85  Rev.  Stats.,  c.  69,  5  349,  [6687], 

(670) 


Chap.  31]  INHEKITANCE    TAX.  §  409 

tion  thereupon  issued  to  C.  D.,  the  executor  therein  named,  and  said 
C.  D.  is  now  the  duly  qualified  executor  of  said  estate;  that  on  the 

day  of  ,  19 — ,  L.  M.,  of  said  county,  was  appointed  by 

said  court  to  appraise  the  property  of  said  estate  liable  for  the  payment 
of  the  inheritance ;  that  said  L.  M.  thereupon  gave  notice  of  the  time 

and  place  fixed  by  him  for  appraising  said  property,  and  on  the  

day  of  ,  19 — ,  appraised  said  property  at  the  sum  of  dol- 
lars, and  filed  the  report  of  his  proceedings,  together  with  the  deposi- 
tions taken  by  him  in  said  appraisement  matter,  in  said  court;  and  that 

on  the  day  of  ,  19 — ,  this  court  made  an  order  assessing 

said  tax  in  the  words  and  figures  following:    [Copy  order  in  full.] 

Your  petitioner  therefore  prays  that  a  summons  to  show  cause  issue 
t<>  C.  D.,  executor  of  the  estate  of  said  A.  B.,  and  to  E.  F.  and  the 
X  Y.  Z.  Co.,  commanding  them  to  show  cause,  if  any  they  have,  why  a 
decree  of  said  court  should  not  issue  directing  said  executor  to  pay  the 
said  tax,  and  for  such  other  and  further  relief  as  justice  may  require. 

Dated  this day  of ,  19 — . 

(Signed)     R.  J.  S., 
County  Attorney. 

Under  the  Oregon  practice,  the  county  court  is  re- 
quired to  enter  in  a  book  furnished  by  the  secretary  of 
state  a  record  of  all  estates  on  which  letters  testamen- 
tary or  of  administration  are  granted,  giving  names 
of  the  heirs,  devisees,  legatees  and  beneficiaries,  their 
residences  and  relationship  to  the  decedent,  the  amount 
of  their  legacies,  the  estimated  values  of  their  devises, 
the  amount  of  the  inventory,  the  returns  of  the  inherit- 
ance tax  appraisers,  the  value  of  all  inheritances,  de- 
vises, bequests,  legacies  and  gifts  inherited  from  such 
decedent,  or  given  by  such  decedent  in  his  will  or 
otherwise,  as  fixed  by  the  court;  and  the  tax  assessed 
thereon  and  the  amounts  of  any  receipts  for  payment 
thereof  filed  in  said  court.  Expectancy  tables,  and 
tables  giving  values  of  annuities  and  life  estates,  and 
the  present  worth  of  remainders  and  reversions.86 

The  tax  to  the  amount  of  $5,000  constitutes  an  in- 
heritance tax  fund.  Amounts  in  excess  of  that  sum  are 

86  L.  O.  L.,  §  1218. 

(G71) 


§  409a  PROBATE   AND  ADMINISTRATION.          [Chap.  31 

transferred  to  and  become  a  part  of  the  general  fund 
of  the  state.87 

§  409a.    Life  expectancy  tables. 

Life  expectancy  tables  are  necessary  in  determining 
the  present  value  of  homestead  interests  and  life  es- 
tates. Such  tables  which  have  been  prepared  by 
recognized  authorities,  and  are  contained  in  a  law  book 
of  general  acceptance  as  a  standard,  or  other  reliable 
publication,  are  competent  evidence  of  a  person's  ex- 
pectancy of  lif e,87a  As  they  are  prepared  from  general 
mortality  statistics,  proof  that  the  party  whose  ex- 
pectancy it  is  desired  to  determine  is  in  sound  health 
is  not  necessary.87b  They  are  not  conclusive,  and  evi- 
dence of  the  habits  and  present  physical  condition  of 
the  party  is  admissible  to  show  that  his  expectancy  is 
above  or  below  the  average.88 

The  American  and  Carlisle  tables  are  the  ones  most 
frequently  referred  to.89  The  Actuaries  table,  pre- 
pared from  mortuary  statistics  of  a  large  number  of 
life  insurance  companies  by  an  association  of  actuaries, 
is  also  a  standard.  There  is  but  little  difference  be- 
tween them,  except  that  for  extreme  old  ages  the 
expectancies  according  to  the  Carlisle  table  are  too 
high. 

87  L.  O.  L.,  §  1195. 

87a  Chicago  R.  I.  &  P.  R.  Co.  v.  Hambel,  2  Neb.  Unof.  607,  89  N.  W. 
643;  Sellars  v.  Foster,  27  Neb.  118,  42  N.  W.  907. 
87b  Cusick  v.  Boyne,  1  Cal.  App.  643,  82  Pac.  985. 

88  South  Omaha  v.  Sutliffe,  72  Neb.  746,  101  N.  W.  997. 

89  Chicago  E.  I.  &  P.  R.  Co.  v.  Hambel,  2  Neb.  Unof.  607,  89  N.  W. 
643. 

(672) 


CHAPTER  XXXII. 

ACCOUNTING. 

§  410.  Duty  of  Executor  or  Administrator  to  Bender  an  Account. 

411.  When  Accounting  Required. 

412.  Proceedings  for  an  Accounting. 

413.  Annual  or  Interlocutory  Accounts. 

414.  Debtor  Side  of  Account — General  Charges. 

415.  Debtor  Side  of  Account — Interest. 

416.  Debtor  Side  of  Account — Lands  Purchased. 

417.  Credit  Side  of  Account — General  Charges. 

418.  Costs  and  Expenses  of  Administration. 

419.  Costs  and  Expenses  of  Administration — Concluded. 

420.  Fees  of  Executor  or  Administrator. 

421.  Fees  and  Special  Compensation. 

422.  Notice  of  Hearing  on  Administration  Account. 

423.  Hearing  on  the  Account. 

424.  Hearing  on  the  Account — Concluded. 

425.  Order  Allowing  Final  Account. 

426.  Coexecutors  and  Coadministrators. 

427.  Equitable  Action  to  Recover  Assets. 

428.  Accounting  by  Former  Executor  or  Administrator  With  Admin- 

istrator De  Bonis  Non. 

§  410.    Duty  of  executor  or  administrator  to  render  an 
account. 

Every  administrator,  or  an  executor  who  has  given 
a  general  bond  as  such,  is  required  to  give  an  account 
of  the  whole  of  the  goods,  chattels,  rights  and  credits 
of  the  deceased  which  may  come  into  his  possession, 
including  proceeds  of  the  sale  of  real  estate  for  the 
payment  of  debts  and  legacies,  and  of  all  the  interest, 
profit  and  income  that  shall  in  any  way  come  into  his 
hands  from  the  estate  of  the  deceased.1 

l  Rev.  Stats.,  c.  17,  §  237,  [1501];  L.  O.  L.,  §§  1282,  1285. 

43— Pro.  Ad.  (673) 


§  411  PEOBATE  AND  ADMINISTRATION.          [Cliap.  32 

An  executor  who  has  given  a  bond  as  residuary 
legatee  is  not  compelled  to  file  an  account  of  the  prop- 
erty that  has  come  into  his  charge;  a  statement  accom- 
panied by  vouchers,  or  showing  that  all  the  debts 
allowed  against  said  estate,  and  the  legacies  and  the 
costs  and  expenses  of  administration  have  been  paid, 
is  all  that  is  required.2 

The  Oregon  statutes  do  not  provide  for  a  residuary 
legatee  bond,  and  consequently  a  full  accounting  is 
required  of  all  estates. 

§  411.    When  accounting  required. 

Every  executor  or  administrator  is  required  to  ren- 
der an  account  within  one  year  from  the  date  of  his 
letters,  unless  further  time  is  allowed  by  the  court,  or 
at  any  time  pending  administration,  when  cited  so  to 
do,  on  application  of  an  interested  party.  Where  for 
any  reason  a  full  settlement  cannot  be  had  within  the 
time  fixed  by  the  court,  a  settlement  shall  be  made  as 
far  as  possible,  and  the  administration  continued  until 
a  full  settlement  can  be  had.3 

Under  the  Oregon  practice,  he  is  required  within  the 
first  ten  days  of  April  and  October  of  each  year,  until 
the  administration  is  completed,  to  file  a  verified 
account  with  the  clerk  of  the  county  court,  with  proper 
vouchers  showing  the  amount  of  claims  presented, 
amount  allowed  and  disallowed,  and  payments  made. 
In  case  the  notice  of  his  appointment  shall  be  within 
sixty  days  next  preceding  the  first  day  of  April  or 
October,  the  filing  of  the  account  shall  be  omitted  until 
the  succeeding  April  or  October.4 

2  McElroy  v.  Hathaway,  44  Mich.  339,  6  N.  W.  367;  Copp  v.  Hersey, 
31  N.  H.  317. 

3  Rev.  Stats.,  c.  17,  §245,   [1509]. 

4  L.  0.  L.,  §  1262;  In  re  Mark's  Estate,  68  Or.  344,  133  Pae.  777. 

(674) 


Chap.  32]  ACCOUNTING.  §  411 

He  may  be  cited  to  file  his  account  at  any  time  after 
the  expiration  of  six  months  from  his  appointment 
when  it  is  made  to  appear  by  the  application,  under 
oath,  of  any  party  interested  in  the  estate  that  there 
are  assets  in  the  hands  of  such  representative,  the 
whole  or  any  portion  of  which  ought  to  be  immediately 
paid  to  such  applicant.  Such  citation  may  also  issue 
when  he  has  neglected  to  file  his  accounts  within  the 
time  fixed  by  the  statute.5 

An  interested  party  includes  a  creditor,6  an  heir, 
distributee  or  legatee,7  and  in  some  cases  a  remainder- 
man.8 A  surety  upon  his  bond  cannot  compel  an 
accounting.* 

After  the  time  for  completing  the  administration  has 
expired  the  court  may  of  its  own  motion  cite  him  to 
account.10 

The  statutes  contemplate  that  an  estate  be  adminis- 
tered within  three  years  from  the  date  of  letters,  except 
in  cases  of  a  testate  estate  where  a  trust  exists  which 
cannot  be  closed  up  within  that  period.  If  at  the  ex- 
piration of  three  years  the  debts  and  legacies  are  all 
paid,  the  court  may  of  his  own  motion  cite  the  personal 
representative  to  account.  Where  a  trust  has  been 
created  by  the  will,  the  estate  can  be  closed  up  except 
in  so  far  as  the  trust  prevents.11 

5  Eev.  Stats.,  e.  17,  §248,  [1512].  See  L.  O.  L.,  §1283;  In  re 
Mark's  Estate,  66  Or.  344,  133  Pac.  777. 

«  Wever  v.  Marvin,  14  Barb.  (N.  Y.)  376;  Beeber's  Appeal  (Pa.),  8 
Atl.  191. 

7  Eogers  v.  Marston,  £0  Me.  404,  15  Atl.  22. 

8  Godwin  v.  Wartford,  107  N.  C.  168,  11  S.  E.  1051. 
»  Durnell  v.  Providence  Mun.  Ct.,  9  B.  I.  189. 

10  Whitman's  Appeal,  28  Pa.  376;  In  re  Campbell,  12  Wis.  3C9. 

11  Kev.  Stats.,  c.  17,  §  128,  £1392]. 

[(675) 


§  412  PEOBATE  AND  ADMINISTRATION.          [Chap.  32 

There  is  no  statute  of  limitations  fixing  the  time 
within  which  application  for  an  accounting  by  the  per- 
sonal representative  may  be  granted.12  As  long  as 
there  are  assets  of  the  estate  unadministered,  it  is  the 
duty  of  the  court  to  cite  him  to  appear.  Lapse  of  time 
raises  a  presumption,  which  is  not  conclusive,  that  the 
administration  has  been  fully  completed.13  After  one 
year,  provided  he  has  not  been  granted  an  extension 
of  time,  or  some  trust  exists,  he  has  no  valid  reason 
for  not  filing  either  a  full  or  partial  account.  No 
excuse  will  be  accepted  short  of  an  absolute  dis- 
charge,14 or  that  no  assets  have  ever  come  into  his 
hands,  which  is  in  effect  a  final  account.15 

§  412.    Proceedings  for  an  accounting. 

When  the  personal  representative  has  never  filed 
an  account  or  procured  an  extension  of  time,  and  the 
time  fixed  for  completing  the  administration  has  ex- 
pired, a  motion  or  petition  setting  up  such  fact  is  all 
that  is  required.  An  application  for  an  interlocutory 
account  should  set  out  sufficient  facts  to  show  that 
some  disposition  should  be  made  of  the  assets  in  the 
hands  of  the  executor  or  administrator.16  If  for  a 
final  accounting,  it  should  show  that  the  estate  is  fully 
administered.  If  the  executor  or  administrator  has 

12  Fuller  v.  Cushman,  170  Mass.  286,  39  N.  E.  361;  Allen  v.  Bartlett, 
52  Kan.  387,  34  Pac.  1042. 

13  Fuller  v.  Cushman,  170  Mass.  286,  39  N.  E.  361;  Eoberts  v.  Johns, 
16  S.  C.  171. 

14  Montgomery  v.  Cloud,  27  S.  C.  188,  3  S.  E.  196;  Portis  v.  Cummings, 
14  Tex.  139;  In  re  Sanderson's  Estate,  74  Gal.  199,  15  Pac.  753. 

15  In  re  Soutter,  105  N.  Y.  514,  12  N.  E.  34. 

16  Treadwell  v.  Sorrell,  23  Miss.  563. 

(676) 


Chap.  32]  ACCOUNTING.  §  412 

uncollected  notes  or  securities  in  his  possession,  a  final 
settlement  cannot  be  had  unless  the  parties  entitled 
thereto  have  agreed  upon  a  distribution  of  such  as- 
sets.17 

A  petition  filed  a  long  time  after  letters  issue  should 
set  out  with  particularity  the  assets  remaining  on  hand 
and  the  duties  of  the  representative  not  complied 
with.18  In  all  cases  it  should  allege  the  interest  the 
applicant  has  in  the  estate  and  should  be  verified.19 

A  citation  should  issue  and  personal  service  had  on 
the  representative.  Should  he  fail  to  comply  with  the 
order  of  the  court,  he  may  be  proceeded  against  for 
contempt,  and  is  also  liable  on  his  bond  for  all  dam- 
ages that  may  accrue.20  The  order  is  not  subject  to 
appeal.21 

Form  No.  180. 

GENERAL  PETITION  FOR  AN  ACCOUNTING  BY  AN  EXECUTOR 
OR  ADMINISTRATOR. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  E.  F.,  respectfully  represents  unto  the  court  that  he 
is  an  heir  at  law  of  said  A.  B.  (legatee  of  said  estate];  [that  on  the 

day  of ,  19 — ,  he  .filed  a  claim  against  said  estate  in  said 

court,   which   claim   was,   on   the  day  of  ,   19 — ,   allowed 

by  the  judge  thereof  in  the  sum  of  dollars,  and  no  appeal  has 

been  taken  from  the  order  allowing  the  same]  ;  that  on  the  day 

of  ,   19 — ,  letters  of  administration  issued  out  of  and  under  the 

seal  of  said  court  to  C.  D. ;   that  on  the  day  of  ,  19 — , 

the  said  court  made  an  order  fixing  the  time  of  payment  of  debts  and 
disposing  of  said  estate  at  one  year  from  said  date  last  aforesaid,  and 

17  In  re  Morrison's  Estate,  48  Or.  612,  87  Pac.  1043. 

18  Tait  v.  Gardner,  119  Ga.  133,  46  S.  E.  73. 

19  In  re  Robinson,  6  Mich.  137;  Rev.  Stats.,  c.  17,  §248,  [1512]. 

20  Rev.   Stats.,   e.   17,   §248,    [1512];   L.  O.  L.,  §1283;  Rutenic  r. 
Hamakar,  40  Or.  451,  67  Pac.  192. 

21  In  re  Palthorp,  160  Pa,  316,  28  Atl.  689. 

(677) 


§412  PROBATE   AND  ADMINISTRATION.          [Cliap.  32 

that  no  further  time  has  been  granted  by  the  court  for  that  purpose ; 
that  said  administrator  has  disposed  of  said  estate,  but  has  neglected 
and  still  neglects  to  pay  the  debts  due  from  said  estate,  and  settle  the 
same,  and  render  an  account  of  his  admin istration. 

Your  petitioner  therefore  prays  that  said  C.  D.,  administrator  as 
aforesaid,  may  be  required  to  pay  the  debts  against  said  estate,  and 
settle  the  same,  and  render  an  account  of  his  administration,  as  far  as 
the  same  may  be  had,  and  that,  in  the  case  of  his  failure  to  do  so,  his 
account  be  determined  in  his  absence,  and  for  such  other  and  further 
relief  as  may  be  deemed  just  and  equitable. 

(Signed)     E.  F. 

[Add  verification,  Form  No.  5.] 

Form  No.  181. 

PETITION  BY  LEGATEE  FOB  AN  ACCOUNTING. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  E.  F.,  respectfully  represents  unto  the  court  that  he 
is  interested  in  said  estate  as  a  legatee  thereof;  that  on  the  —  —  day 

of ,  19 — ,  letters  testamentary  issued  out  of  and  under  the  seal 

of  said  court  to  C.  D.,  as  executor  of  said  estate;  that  sa.id  C.  D.,  ex- 
ecutor as  aforesaid,  has  collected  from  the  personalty  of  said  estate  the 
sum  of dollars  ($ ),  and  now  holds  the  same  in  his  posses- 
sion; that  the  debts  due  from  said  estate  have  beea  paid;  that,  according 
to  the  terms  of  said  will,  a  legacy  of dollars  ($ )  was  di- 
rected to  be  paid  to  your  petitioner  within  six  months  from  the  date 
of  the  issue  of  letters  testamentary,  and  made  a  first  charge  upon  the 
assets  of  said  estate;  that  there  is  now  in  the  hands  of  said  executor 
funds  sufficient  to  pay  said  legacy,  and  all  expenses  of  administration; 
that  said  C.  D.,  executor  as  aforesaid,  has  neglected  and  refused,  and 
still  neglects  and  refuses,  to  pay  said  legacy  as  directed  by  said  will, 
and  that  the  amount  of  said  legacy  should  be  immediately  decreed  to  be 
paid  to  your  petitioner. 

Your  petitioner  therefore  prays  that  said  C.  D.,  executor  as  aforesaid, 
be  required  to  render  an  account  of  his  administration,  and  decreed  to 
pay  said  legacy  to  your  petitioner,  and  for  such  other  and  further  relief 
as  may  be  just  and  equitable. 

Dated  this day  of ,  19 — . 

(Signed)     E.  F. 

[Add  verification,  Form  No.  5.] 

X678) 


Chap.  32]  ACCOUNTING.  §  413 

Form  No.  182. 
CITATION  TO  EXECUTOR  OK  ADMINISTRATOR  TO  ACCOUNT. 

State  of  Nebraska, 
• County, — 38. 

To  C.  D.,  Executor  of  the  Estate  of  A.  B.,  Deceased: 

You  are   hereby   notified  that,  on   the  day  of  ,  19 — , 

E.  F.  filed  his  petition  in  the  county  court  of  said  county  praying  for  an 
accounting  of  your  administration  of  said  estate. 

You  are  required  to  render  an  account  of  your  doings  as  administrator 
of  said  estate  on  or  before  the  day  of  ,  19 — . 

Dated  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K, 

County  Judge. 

§  413.    Annual  or  interlocutory  accounts. 

Accounts  rendered  pending  administration,  and  be- 
fore the  final  account,  are  in  the  nature  of  a  statement 
of  the  transactions  of  the  executor  or  administrator  up 
to  that  date,  and  differ  materially  from  the  final  ac- 
count. They  are  often  made  ex  parte,  and  without 
notice  to  those  interested  in  the  estate,  and  the  hear- 
ing thereon  very  frequently  takes  place  in  the  absence 
of  such  persons.  The  approval  of  them  by  the  court 
is  a  judicial  determination  that  they  are  only  prima 
facie  correct.22  The  accounts  so  allowed  without  prac- 
tically any  hearing  thereon  are  not  considered  binding 
and  conclusive.  At  any  time  before  the  final  account 
of  administration  is  allowed  they  may  be  opened  up 
and  their  correctness  questioned;  and  this  is  true, 
though  no  exception  or  appeal  has  been  taken  from 
their  allowance.23  Such  account,  however,  is  presumed 

22  Musick  v.  Beebe,  17  Kan.  47. 

23  Bachelor  v.   Schmela,  49   Neb.   37,  68  N.  W.  378;    Boales  v.  Fer- 
guson, 55  Neb.  565,   76  N.  W.  18;   In  re  Heath's  Estate,  58  Iowa,  36, 
11  N.  W.  723;  Griggs  v.  Shaw,  42  N.  J.  Eq.  631,  9  Atl.  578. 

(679) 


§413 


PROBATE   AND  ADMINISTRATION.          [Chap.  32 


to  be  correct  until  attacked  on  the  hearing  of  a  second 
interlocutory  or  a  final  account  on  account  of  mistakes, 
errors,  or  fraud.24 

In  cases  where  the  account  is  contested,  it  has  been 
held  conclusive  on  all  of  those  contesting  it  who  were 
not  under  disability,  and  on  all  those  under  disability 
who  were  properly  represented  by  guardians.25  The 
order  not  being  final  is  not  appealable.26 

Form  No.  183. 
ANNUAL    OR   INTERLOCUTORY   ACCOUNT    OF   EXECUTOR    OR 

ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

The  undersigned,  C.  D.,  administrator  of  the  estate  of  A.  B.,  de- 
ceased, herewith  submits  the  account  of  his  administration  of  said 

estate,  including  all  transactions  of  said  estate  up  to ,  19 — . 

C.  D.,  Administrator,  in  Account  with  Estate  of  A.  B.,  Deceased. 

DB.  CR. 


19    .    . 

$  

19  

$     

[Give  items  of  all 
cash  received.] 

[Give  all  disburse- 
ments by  items.] 

d> 

By  bal.  on  hand. 



There  remains  in  my  possession  and  undisposed  of  the  following  as- 
sets of  said  estate,  the  appraised  value  of  which  is  set  opposite  each 
item: 


Items 

Values 

$ 

sion  undisposed  of  

$ 

24  Patterson  v.  Bell,  25  Iowa,  150. 

25  Kittson  v.  St.  Paul  Trust  Co.,  78  Minn.  325,  81  N.  W.  7;   Duke's 
<Ldmr.  v.  Duke's  Distributees,  26  Ala.  673;  Turney  v.  Williams,  7  Yerg. 
(Tenn.)  211;  Succession  of  Triche,  39  La.  Ann.  289,  2  South.  52. 

26  Continental  Trust  Co.  v.  Peterson,  76  Neb.  411,  110  N.  W.  316. 

(680) 


Chap.  32]  ACCOUNTING.  §  414 

That  the  total  value  of  all  the  assets  of  the  estate  in  my  possession 
is  dollars  ($ ). 

State  of  Nebraska, 

County, — SB. 

C.  D.,  administrator  of  the  estate  of  A.  B.,  deceased,  being  first  duly 
sworn,  on  oath  says  that  the  foregoing  is  a  correct  account  of  his  doings 
as  administrator  of  said  estate  of  the  amount  received  and  paid  out 
by  him  up  to  this  date,  and  of  the  amount  of  unadministered  assets 
in  his  possession. 

(Signed)     C.  D. 

Subscribed  in  my  presence  and  sworn  to  before  me  this day  of 

,  19-. 

(Signed)     J.  K., 
County  Judge. 

§  414.    Debtor  side  of  the  account — General  charges. 

An  administration  account  is  a  statement,  under 
oath,  showing  by  items  what  assets  the  representative 
has  received  and  what  has  been  done  with  them, 
accompanied  by  proper  vouchers  for  all  disbursements. 
The  inventory  and  appraisement  is  the  basis  for  all 
accounts.  It  is  not  conclusive  or  binding  on  either 
part}*.  Property  omitted,  though  not  included  in  a 
supplemental  inventory  may  be  shown  as  well  as  other 
errors.  He  is  presumed  by  law  to  be  liable  for  the' 
property  at  its  appraised  value.27 

The  executor  or  administrator  should  account  for 
all  the  estate  inventoried,  for  property  sold  under 
license  of  the  court  at  the  prices  received,  and  for  those 
sold  without  such  order  at  their  appraised  value,  or 
if  he  received  more  at  the  prices  received,  unless  he 
acted  in  good  faith  and  the  loss  was  not  occasioned  by 
his  fault.28  If  the  property  is  sold  for  its  reasonable 

27  Conser's  Estate,  40  Or.   139,  66  Pac.  607. 

28  Rev.  Stats.,  c.  17,  §§  241,  239,  [1505],  [1503];  L.  O.  L.,  §  1289. 

(681) 


§  414  PROBATE   AND  ADMINISTRATION.         [Chap.  32 

value,  and  lie  has  substantially 'received  the  appraised 
value  of  the  estate,  he  should  not  be  charged  with 
slight  differences  in  appraised  values.29  He  must 
account  for  all  the  increase  of  the  estate,  but  is  not 
responsible  for  loss  or  decrease  or  destruction  occur- 
ring without  his  fault.30  If  he  is  an  ancillary  admin- 
istrator, he  is  only  chargeable  with  assets  collected 
and  received  in  this  state.31  He  is  chargeable  with 
all  profits,  from  whatever  source  derived,  growing  out 
of  his  management  of  the  estate,  and  is  allowed  no 
other  pay  than  that  given  him  by  statute.32  If  he  has 
taken  possession  of  the  real  estate,  or  any  part  of  it, 
he  is  chargeable  with  the  rents  and  income  from  the 
time  when  the  condition  of  the  estate  was  such  as  to 
make  such  possession  necessary.33  He  is  chargeable 
wifh  his  own  debt  to  the  estate,  though  insolvent,  if 
at  any  time  during  the  administration  he  had  property 
sufficient  to  pay  it.34  In  case  of  his  insolvency,  an 
action  in  equity  would  appear  to  be  necessary  to  fix 
the  amount. 

Under  the  Oregon  statute  by  which  his  indebtedness 
is  to  be  considered  as  money  belonging  to  the  estate, 
it  ceased  to  be  either  property  of  the  estate  to  be 
accounted  for  at  not  less  than  its  appraised  value  or 
a  debt  due  the  estate,  and  therefore  not  a  liability  of 

29  In  re  Osburn's  Estate,  36  Or.  11,  58  Pac.  521;  In  re  Conser's  Estate, 
40  Or.  139,  66  Pac.  607. 

so  Rev.  Stats.,  c.  17,  §249,  [1513];  L.  O.  L.,  §1289. 

31  Tunnieliff  v.  Fox,  69  Neb.  811,  94  N.  W.  1032. 

32  Walworth  v.  Bartholomew,  76  Vt.  1,  56  Atl.  101;  Norris'  Appeal, 
71  Pa.  106;  Dilworth's  Appeal,  108  Pa.  92;  Ex  parte  Glenn,  20  S.  C.  64; 
In  re  Gilbert's  Estate,  39  Hun  (N.  Y.),  61. 

33  Section  199,  supra. 

34  Section  217,  supra. 

(682) 


Chap.  32]  ACCOUNTING.  §  415 

his  in  case  it  was  uncollectible,  and  he  is  chargeable 
with  the  same.35 

He  is  also  chargeable  with  the  rental  value  of  such 
part  of  the  real  estate  as  he  himself  may  occupy,36  and 
with  the  proceeds  of  the  sales  of  lands  recovered  from 
a  fraudulent  grantee  of  the  decedent.37 

He  is  not  chargeable  with  debts  due  the  deceased 
which  are  uncollectible,38  nor  with  the  value  of  the 
household  furniture,  exempt  property  and  effects 
which  pass  to  the  widow  and  children.39 

§  415.    The  debtor  side  of  the  account — Interest. 

An  executor  or  administrator  should  account  for  all 
interest  received  on  funds  in  his  hands  at  a  rate  not 
less  than  what  he  actually  received.40  Where  he  has 
administered  the  estate  successfully  without  serious 
delay  or  incurring  large  costs,  courts  are  loath  to 
charge  him  with  interest,  unless  he  has  actually  re- 
ceived it,  his  duty  being  to  administer  and  not  invest,41 
but  if  he  has  converted  interest-bearing  securities  into 
cash  when  the  money  was  not  needed,  and  deposited 
it  in  a  bank  not  drawing  interest,42  or  permitted  large 
sums  of  money  to  remain  idle  when  he  could  at  least 
have  obtained  bank  rates  of  interest  on  them,  he  should 

35  In  re  Masera's  Estate,  42  Or.  178,  70  Pae.  507;  L.  0.  L.,  §  1182. 

36  Rev.  Stats.,  c.  17,  §  243,  [1507]. 
3"  Section  215,  supra. 

38  Rev.  Stats.,  e.  17,  §  242,  [1506] ;  L.  O.  L.,  §  1289. 

39  Section  417,  post. 

40  Barney  v.  Saunclers,  16  How.  (U.  8.)  543. 

41  Wyman  v.  Hubbard,  13  Mass.  232. 

42  Verner's  Estate,  6  Watts  (Pa.),  250. 

(683) 


§  415  PROBATE   AND  ADMINISTRATION.          [Chap.  32 

be  charged  with  the  rate  of  interest  which  he  would 
have  received  had  they  been  so  invested.43 

He  is  always  chargeable  with  interest  when  he 
mingles  the  funds  of  the  estate  with  his  own,  or  uses 
them  for  his  own  benefit,44  or  has  without  authority 
from  a  will  continued  the  business  of  the  decedent, 
though  at  a  loss.45  In  both  the  above  cases,  if  he  has 
made  profits  in  excess  of  usual  interest  rates,  he  may 
be  compelled  to  account  for  the  profits  received  and 
also  forfeit  his  commission.46 

Interest  should  also  be  charged  to  him  where  he 
has  mingled  the  funds  with  those  of  strangers,  and 
where  they  have  been  deposited  in  banks  to  the  credit 
of  such  parties,  though  he  personally  received  no  bene- 
fit therefrom,47  and  where  he  has  neglected  for  an 
unreasonable  length  of  time  to  file  his  account  when 
cited  so  to  do,  such  delay  not  being  caused  by  laches 
or  any  direct  act  of  those  interested  in  the  estate.48 

Another  cause  for  charging  interest  is  delay  caused 
by  negligence  and  bad  faith  of  the  representative, 
which  resulted  in  a  benefit  to  no  one  except  his  attor- 

43  Mathes  v.  Bennett,  21  N.  H.  199;  Walker's  Appeal,  116  Pa.  419, 
9  Atl.  654;  Hough  v.  Harvey,  71  111.  72;  In  re  firewater's  Estate,  113 
Mich.  561,  71  N.  W.  1085. 

44  In  re  Bush's  Estate,  89  Neb.  334,  131  N.  W.  602;  Westover  v.  Car- 
man's Estate,  49  Neb.  397,  68  N.  W.  501;  Perrin  v.  Lepper,  72  Mich. 
454,  40  N.  W.  859;   McClosky  v.  Gleason,  56  Vt.  264. 

45  Section  232,  supra. 

46  Norris'  Appeal,  71  Pa.  106. 

47  Westover  v.  Carman's  Estate,  49  Neb.  397,  68  N.  W.  501. 

48  Lommen  v.  Tobiason,  52  Iowa,  655;  Walker's  Appeal,  116  Pa.  519, 
9  Atl.  654;  Eubank  v.  Clark,  78  Ala.  73;  Johnson  v.  Holfield,  82  Ala. 
123,  2  South.  753. 

(684) 


Chap.  32]  ACCOUNTING.  §  415 

neys,  and  evidence  that  the  litigation  causing  the  delay 
was  on  the  advice  of  his  attorneys  is  no  defense.49 

In  all  cases  of  negligence  or  misconduct  on  the  part 
of  the  representative,  he  should  be  charged  with  in- 
terest at  the  statutory  rate  from  the  date  the  estate 
would  have  been  settled  had  it  been  administered  by 
a  diligent  representative,  guided  by  proper  legal  ad- 
vice.50 If  such  misconduct  amounts  to  a  willful  vio- 
lation of  law,  and  there  appears  to  have  been  a  fixed 
plan  of  the  representative  and  his  legal  advisers  to 
loot  the  estate,  he  should  be  charged  the  highest  rate 
the  statute  provides,  and  the  interest  compounded 
annually  or  semi-annually.51 

He  is  not  chargeable  with  interest  on  funds  held 
awaiting  the  result  of  suits  pending  against  the  estate, 
unless  they  have  been  used  by  him  for  his  own  pur- 
poses or  he  has  received  interest  on  them,52  nor  on  that 
held  pending  an  appeal  from  the  allowance  of  his 
account  when  the  appellate  court  sustained  the  order.53 

49  Bullion  v.  Kibble,  87  Neb.  700,  128  N.  W.  32. 

50  Bullion  v.  Kibble,  87  Neb.  700,  128  N.  W.  32. 

51  In  re  Sanderson's  Estate,  74  Cal.  199,  15  Pac.  753;  Elliott  v.  Spar- 
rell,   114  Mass.  404;    Schieflin  v.  Stewart,   1   Johns.  Ch.    (N.   Y.)    620; 
Scott  v.  Crews,  72  Mo.  261;  Perrin  v.  Lepper,  72  Mich.  454,  40  N.  W. 
850.     In  the  latter  case  an  executor,  who  was  a  surviving  partner,  for 
twenty  years  resisted  various  suits  to  compel  him  to  settle  his  affairs, 
and  converted  substantially  the  entire  assets  of  the  estate.     The  decision 
of  the  lower  court  was  for  the  defense.     The  supreme  court  reversed 
the  case  and  charged  the  representatives  of  the  estate  of  the  executor 
with  seven  per  cent  compound  interest  for  twenty  years,  principal  and 
interest,  amounting,  including  real  estate,  to  five  hundred  thousand 
dollars. 

52  Booker  v.  Armstrong,  93  Mo.  49,  4  S.  W.  727;  Dortch  v.  Dortch, 
71  N.  C.  224. 

53  Wendell  v.  French,  19  N.  H.  205;  Steams  v.  Brown,  1  Pick.  (Mass.) 
530. 

(685) 


§§416,417      PKOBATE   AND  ADMINISTRATION.         [Chap.  32 

§  416.  Debtor  side  of  the  account — Lands  purchased. 
An  executor  or  administrator  who  has  violated  his 
trust  by  purchasing  lands  with  the  personal  assets  may 
be  charged  with  the  amount  so  expended,  with  interest. 
If  he  has  taken  the  title  in  himself,  he  holds  it  in  trust 
for  the  distributees,  and  they  have  an  equitable  lien 
for  the  amount  due  them.54  A  more  equitable  rule 
would  be  to  make  the  delinquent  representative  a  trus- 
tee for  the  full  value  of  the  property  if  it  exceeded 
in  value  the  amount  of  the  interests  of  the  creditors 
and  distributees  therein. 

§  417.    Credit  side  of  account — General  charges. 

The  credit  side  of  the  account  should  be  a  complete 
and  itemized  statement  of  all  payments  made  by  the 
executor  or  administrator  connected  with  its  adminis- 
tration, so  that  a  balance  can  be  struck  showing  the 
exact  amount  to  be  distributed  to  the  heirs  of  an  in- 
testate estate  or  to  a  residuary  legatee.  They  may  be 
divided  into  three  classes:  Debts,  expenses  of  adminis- 
tration and  fees  for  services  of  the  representative. 
Legacies  paid  from  personal  assets,  or  from  the  pro- 
ceeds of  the  sales  of  real  estate,  are  also  proper  credits. 
He  is  entitled  to  credit  for  all  general  claims  allowed 
against  the  estate  which  he  has  paid,  and  under  no 
circumstances  should  he  receive  credit  for  payment  of 
an  unsecured  general  demand  which  was  not  presented 
and  allowed  by  the  county  court.55 

He  is  also  entitled  to  credit  for  money  paid  to  redeem 
any  of  the  assets  from  a  lien  or  charge  thereon,  and 

54  Blake  v.  Chambers,  4  Neb.  90. 

65  Johnson  T.  Pulver,  1  Neb.  Unof.  290,  95  N.  W.  697. 

(686) 


Chap.  32]  ACCOUNTING.  §  418 

if  he  has  advanced  the  money  himself,  there  being 
no  assets  available  when  they  became  due,  it  is  proper 
to  allow  him  interest  on  such  amount  so  advanced.58 

Money  paid  to  the  widow  or  guardian  of  minors  or 
to  distributees  generally  is  not,  strictly  speaking,  a 
proper  credit,  excepting  only  the  statutory  allowance 
for  support.57  It  is  more  in  the  nature  of  an  advance- 
ment, and  may  be  deducted  by  the  court  in  making 
the  decree  of  distribution.58  The  better  practice  is  not 
to  include  them  as  credits  in  the  account  itself,  but 
carry  them  as  so  much  cash  on  hand,  deducting  them 
from  the  amounts  found  due  by  the  court. 

The  value  of  the  property  allowed  by  statute  in  all 
estates  to  the  widow  and  heirs  is  not  a  proper  credit 
unless  the  representative  has  already  charged  himself 
with  it. 

§  418.    Costs  and  expenses  of  administration. 

The  executor  or  administrator  is  allowed  all  the 
necessary  expenses  pertaining  to  the  care,  manage- 
ment and  settlement  of  the  estate,59  and  all  costs  of 
the  county  court  and  its  officers  growing  out  of  the 
administration,  including  the  premium  on  his  official 
bond  when  the  same  is  paid  by  a  surety  company.60 

56  Jennison  v.  Hapgood,  10  Pick.  (Mass.)  77;  Booker  v.  Armstrong, 
93  Mo.  49,  4  S.  W.  727;  Liddell  v.  Lid  dell,  11  N.  J.  L.  44;  Evertson 
v.  Tappen,  5  Johns.  Ch.  (N.  Y.)  498. 

67  Trueman  v.  Tilden,  6  N.  H.  201;  In  re  Fitzgerald's  Estate,  57  Wis. 
.508,  15  N.  W.  794. 

58  Hyland  v.  Baxter,  98  N.  Y.  610;  Bradley  v.  Bradley's  Admr.,  83 
"Va.  75,  1  S.  E.  477. 

59  R€v.  Stats.,  e.  17,  §  246,  [1510]  ;  L.  O.  L.,  §  1290. 

60  Bev.  Stats.,  c.  17,  §  236,  [1500] ;  L.  O.  L.,  §  4678. 

(687) 


§  418  PROBATE   AND  ADMINISTRATION".          [Chap.  32 

He  is  entitled  to  necessary  traveling  expenses  in- 
curred in  connection  with  the  business  of  the  estate, 
including  those  of  a  trip  to  another  state,61  but  not  for 
such  expenses  incurred  before  the  death  of  decedent, 
there  being  no  express  promise  to  pay  the  same,62  and 
to  expenses  incidental  to  the  caring  for  and  marketing 
livestock,  and  to  the  sale  of  personalty,  including  ad- 
vertising, getting  property  in  shape  for  sale,  and  pay 
of  an  auctioneer,63  and  to  the  amount  paid  clerks, 
agents  and  bookkeepers  when  the  extent  and  character 
of  the  estate  make  such  employment  necessary.64 

Bills  for  services  of  clerks,  collectors,  etc.,  of  small 
estates  are  not  looked  on  by  the  courts  with  much 
favor.  The  executor  or  administrator  is  required, 
within  reasonable  limits,  to  perform  himself  or  at  his 
own  expense  the  manual  labor  connected  with  the 
administration.  The  law  allows  him  a  commission, 
which  may  be  increased  by  the  court  if  the  work  done 
justifies  it.  He  has  no  right  to  hire  others  to  do  his 
work  at  the  expense  of  the  estate.65 

An  executor  is  entitled  to  proper  costs  and  expenses, 
and  ordinarily  to  attorney  fees,  in  securing  the  pro- 
bate of  a  will.66  Both  executors  and  administrators 
are  allowed  reasonable  attorney  fees  in  any  necessary 

61  Ladd  v.  Stephens,  147  Mo.  319,  48  S.  W.  915;  In  re  McCullough'a 
Estate,  31  Or.  86,  49  Pac.  886. 

62  In  re  McCullough's  Estate,  31  Or.  86,  49  Pac.  886. 

63  In  re  Moore's  Estate,  72  Cal.  335,  13  Pac.  880;  Dey  v.  Codman, 
39  N.  J.  Eq.  258;  Griswold  v.  Chandler,  5  N.  H.  492. 

64  Sowles  v.  Hall,  73  Vt.  55,  50  Atl.  550;  Matter  of  Jacobs,  99  Mo. 
427,  12  S.  W.  457;  Dey  v.  Codman,  39  N.  J.  Eq.  258. 

65  Noble  v.  Jackson,  132  Ala.  230,  31  South.  450;  In  re  Harbeck,  145 
N.  Y.  848,  41  N.  E.  89. 

66  See  §  104,  supra. 

(688) 


Chap.  32]  ACCOUNTING.  §  418 

litigation  or  matter  requiring  legal  advice  or  coun- 
sel pertaining  to  the  administration  of  the  estate.67 
Unless  he  is  himself  an  attorney,  or  competent  to  draft 
legal  papers,  the  employment  of  an  attorney  is  neces- 
sary.68 He  should  be  allowed  his  attorney  fees  and 
expenses  in  any  litigation  connected  with  the  collection 
of  the  assets  and  the  settlement  of  the  estate,  it  appear- 
ing that  they  have  been  incurred  in  good  faith,  and 
for  the  benefit  of  those  interested,69  even  though  not 
successful.70 

An  attorney  may  be  employed  on  a  liberal  contingent 
fee.71  The  general  practice  is  to  allow  a  lump  sum  for 
all  services  performed,72  though  an  itemized  statement 
showing  charges  for  each  particular  matter  may  enable 
the  court  to  pass  more  understandingly  on  the  bill.73 
Allowances  for  attorney  fees  may  be  made  as  the  ad- 
ministration of  the  estate  progresses  instead  of  being 
left  until  the  final  hearing.74  If  made  ex  parte,  they 
are  not  binding  on  those  interested  in  the  estate.74* 

67  Section  230,  supra;  L.  O.  L.,  §  1290. 

68  Section  15,  supra. 

69  Bullion  v.  Kibble,  87  Neb.  700,  128  N.  W.  32;  In  re  Eapp's  Estate, 
77  Xeb.  674,  110  N.  W.  661 ;  Marx  v.  McMoran,  136  Mich.  406,  99  N.  W. 
396;  Taylor  v.  Wright,  93  Ind.  121;  Tuttle  v.  Kobinson,  33  N.  H.  104; 
Steel  v.  Holladay,  20  Or.   467,  25  Pac.  69;   In  re  Osburn's  Estate,  36 
Or.  13,  58  Pac.  521;  In  re  Simon's  Will,  55  Conn.  239,  11  Atl.  36;  In  re 
Marrey's  Estate,  65  Cal.  287,  3  Pac.  896. 

70  Forward  v.  Forward,  6  Allen   (Mass.),  494. 

71  In  re  McCullough's  Estate,  31  Or.  86,  49  Pac.  886. 

72  In  re  Osburn's  Estate,  36  Or.  13,  58  Pac.  521. 

73  Steel  v.  Holloday,  20  Or.  467,  25  Pac.  69. 

74  Knight  v.  Hamaker,'40  Or.  424,  61  Pac.  107. 

74a  In  re  Munger's  Estate  (Iowa),  150  N.  W.  447. 

44— Pro.  Ad.  (639) 


§  419  PROBATE   AND  ADMINISTRATION.          [Chap.  32 

§  419.    Costs  and  expenses  of  administration — Con- 
cluded. 

The  executor  or  administrator  is  not  entitled  to 
either  costs,  expenses  or  attorney  fees  when  the  liti- 
gation in  which  they  were  incurred  was  caused  by  his 
own  carelessness,  negligence  or  incompetence,75  or  in 
cases  not  honestly  and  intelligently  prosecuted,  but 
which  clearly  appear  to  have  been  conducted  in  the 
interest  of  the  administrator,76  or  in  resisting  claims 
to  which  there  was  no  meritorious  defense.77  No  ex- 
penses of  this  kind  should  be  allowed  an  administrator 
where  the  entire  administration  showed  a  studied  plan 
on  the  part  of  the  attorneys  to  contest  every  step 
taken  by  the  heirs  looking  to  a  settlement  of  the  estate, 
resisting  meritorious  claims,  and  in  every  way  pro- 
longing the  administration  by  appeals  and  dilatory 
proceedings.78 

An  executor  or  administrator  who  is  also  an  attor- 
ney is  entitled  to  pay  for  legal  services  in  all  cases 
where,  had  he  been  a  layman,  necessity  required  or 
common  prudence  would  have  dictated  that  he  secure 
legal  counsel  to  assist  him  in  the  settlement  of  the 
estate.79  If  it  appears  necessary  for  the  best  interests 

75  Blake    v.    Pegram,    109    Mass.    541;    Price's   Estate,    81    Pa.    263; 
Cameron  v.  Cameron,  15  Wis.  1. 

76  McDowell  v.  First  Nat.  Bank  of  Button,  73  Neb.  307,  102  N.  W. 
615;  Fletcher  v.  Fletcher,  83  Neb.  126,  119  N.  W.  232. 

77  Bullion  v.  Kibble,  87  Neb.  700,  128  N.  W.  32. 

78  Bullion  v.  Kibble,  supra.     In  this  case  the  county  judge  allowed, 
ex  parte,   attorney's   claims   for   resisting   demands   which    the   supreme 
court  said  were  subject  to  no  meritorious   defense,  and   were  approved 
by  the  heirs,  almost  equal  to  the  amount  of  the  claims,  besides  having 
previously  allowed  them  excessive  sums    on  like  orders. 

79  In  re  Wilson's  Estate,  83  Neb.  252,  119  N.  W.  522;  In  re  Kapp's 
Estate,  77  Neb.  674,  110  N.  W.  661. 

(690) 


Chap.  32]  ACCOUNTING.  §  419 

of  the  estate,  he  can  employ  additional  counsel.  In 
all  cases  where  he  is  an  attorney,  the  court  should 
carefully  examine  his  account  and  give  the  estate  the 
benefit  of  the  doubt,  when  there  is  a  question  whether 
the  duties  were  strictly  legal  or  such  as  should  be 
performed  by  a  personal  representative  himself.80 

Attorney  fees  are  not  a'  primary  liability  of  the 
estate.  The  executor  or  administrator  employs  the 
lawyer,  and  is  personally  liable  for  his  pay.81  He 
credits  the  fees  in  his  final  account,  and  on  the  hear- 
ing they  should  be  allowed,  if  reasonable  in  amount 
and  beneficial  to  the  estate.82 

In  determining  their  value  the  following  elements 
should  be  considered:  The  amount  of  property  in- 
volved, and  consequent  responsibility,  the  questions  of 
law  raised,  their  intricacy,  difficulty  or  novelty,  the 
time,  labor  and  responsibility,  and  the  result  of  the 
services.83 

If  they  are  reasonable  and  proper  and  have  not  been 
paid,  the  court  has  authority  to  allow  the  amount  and 
direct  that  it  be  paid  to  the  attorney.84 

Costs  on  proceedings  for  the  sale  of  real  estate  for 
the  payment  of  debts  and  legacies,  or  to  obtain  leave 
to  complete  contracts  for  the  purchase  or  sale  of  lands 
during  the  lifetime  of  the  decedent,  are  proper  credits.85 

80  In  re  Wilson's  Estate,  83  Xeb.  252,  119  N.  W.  522. 

81  Waite  v.  Willis.  42  Or.  290,  70  Pac.  1034;  Besancon  v.  Wegner, 
16  X.  D.  240,  112  X.  W.  965. 

82  In  re  McCullough's  Estate,  31  Or.  86,  49  Pac.  884;   In  re  Rapp's 
Estate,  77  Xeb.  674,  110  X.  W.  661 ;   Marx  v.  McMoran,  136  Mich.  406, 
99  X.  W.  396;  In  re  Munger's  Estate  (Iowa),  150  N.  W.  447. 

83  Kentucky   Bank   v.   Combs,   7   Pa.   543;    Harland  v.  Lilienthal,   53 
N.  Y.  438;  Betts  v.  Betts,  4  Abb.  X.  C.  (X.  Y.)  317. 

84  Thacher  v.  Dunham,  5  Gray  (Mass.),  26. 
86  Section  256,  supra. 

(691) 


§  420  PROBATE    AND  ADMINISTRATION.          [Chap.  32 

§  420.    Fees  of  executor  or  administrator. 

At  common  law  an  executor  or  administrator  re- 
ceived no  pay  for  his  time  or  services.  That  doctrine 
never  prevailed  in  this  country,  and  the  pay  of  both 
is  fixed  by  law.  A  testator  may  by  his  will  make  pro- 
visions for  the  pay  of  his  executor,  and  the  same  will 
be  deemed  full  pay  for  his  services  unless  he  shall  by 
a  written  instrument  filed  in  the  county  court  renounce 
all  claims  to  compensation  under  the  will.86  The  re- 
nouncement should  be  filed  before  he  accepts  the 
office.87  When  no  compensation  is  given  the  executor 
by  the  will,  or  he  renounce  the  same,  he  or  an  adminis- 
trator will  be  allowed  commissions  upon  the  amount 
of  the  personal  estate  collected  and  accounted  for  by 
him,  and  for  the  proceeds  of  real  estate  sold  under  an 
order  of  the  court  for  the  payment  of  debts,  as  follows: 
For  the  first  thousand  dollars,  at  the  rate  of  five  per 
cent;  for  all  above  that  sum,  and  not  exceeding  five 
thousand  dollars,  at  the  rate  of  two  and  one-half  per 
cent;  and  for  all  above  five  thousand  dollars,  at  the 
rate  of  one  per  cent;  and  in  all  cases  such  further 
allowances  may  be  made  as  the  county  judge  shall 
deem  just  and  reasonable,  and  for  any  extraordinary 
services  not  required  of  an  executor  or  administrator 
in  the  ordinary  course  of  his  duty.88 

He  is  not  entitled  to  a  commission  on  property 
which  never  came  into  his  possession,  or  property  not 
administered  on.89 

86  Rev.  Stats.,  c.  17,  §  246. 

87  In  re  Runyon,  125  Cal.  195,  57  Pac.  783. 

88  Rev.  Stats.,  c.  17,  §247,   [1511]. 

8»  Steel  v.  Hollarlay,  20  Or.  464,  25  Pac.  69. 

(692) 


Chap.  32]  ACCOUNTING.  §  420 

Under  the  Oregon  statute  he  is  entitled  to  the  follow- 
ing commission  upon  the  whole  estate  accounted  for 
by  him:  For  the  first  one  thousand  dollars  or  any  less 
sum,  seven  per  cent;  for  all  above  that  sum  and  not 
exceeding  two  thousand  dollars,  five  per  cent;  for  all 
above  two  thousand  dollars  and  not  exceeding  four 
thousand  dollars,  four  per  cent,  and  for  all  above  four 
thousand  dollars,  at  the  rate  of  two  per  cent.  He  is 
also  allowed  further  compensation  for  extraordinary 
and  unusual  services  not  ordinarily  required  of  an 
executor  or  administrator  in  the  discharge  of  his 
trust.90 

If  his  compensation  is  fixed  by  the  will  and  the  estate 
proves  insufficient  to  pay  the  debts  of  the  deceased, 
the  court  shall  reduce  the  compensation,  so  far  as  may 
be  necessary  to  satisfy  such  claims,  to  an  amount  equal 
to  what  the  executor  would  have  been  entitled  if  no 
such  provision  had  been  made.91 

It  is  pretty  generally  conceded  that  an  executor  is 
not  entitled  to  a  commission  for  delivering  legacies 
of  specific  articles.  Whether  he  is  entitled  to  a  com- 
mission on  the  value  of  notes,  stocks  or  bonds  turned 
over  to  heirs  or  legatees  is  a  question  on  which  there 
is  a  difference  of  opinion,  based  largely  on  local  stat- 
utes. If  the  beneficiary  takes  notes  in  lieu  of  cash, 
it  has  been  held  that  he  was  entitled  to  a  commission,91 
and  the  same  rule  has  been  applied  to  corporate  stock.93 
The  usual  practice  in  this  state  is  to  allow  him  a  com- 
mission on  the  amount  with  which  he  has  charged  him- 
self in  his  account,  not  including  specific  property 
which  he  reports  as  on  hand. 

»o  L.  o.  L.,  §  1292. 

91  L.  0.  L.,  §  1291. 

»2  Shephard  v.  Parker,  35  N.  C.  103. 

»3  Ladd  v.  Stephens,  147  Mo.  319,  48  S.  W.  915. 

(693) 


§  420  PEOBATE   AND  ADMINISTRATION".          [Chap.  32 

He  may  deduct  these  commissions  as  soon  as  the 
assets  are  converted  into  cash.94  If  there  are  two  or 
more  executors  or  administrators,  the  commissions  be- 
long to  them  jointly.  If  one  does  no  more  in  adminis- 
tering the  estate  than  the  other,  they  must  arrange 
between  themselves  for  a  division  of  the  commission, — - 
the  county  court  has  nothing  to  do  with  it.95  He  is 
not  entitled  to  commission  or  pay  as  a  surviving  part- 
ner for  settling  up  the  business  of  the  firm,96 — a  special 
administrator  must  be  appointed  for  that  purpose.97 
When  the  executor  at  the  same  time  acts  in  the  capa- 
city of  trustee,  having  been  appointed  to  the  two  posi- 
tions by  the  same  will,  he  should  receive  his  commis- 
sion as  executor,  and,  unless  the  services  required  of 
him  as  trustee  were  such  as  were  not  ordinarily  re- 
quired of  an  executor,  he  would  be  entitled  to  no  addi- 
tional pay  as  trustee.98  If  he  has  agreed  to  serve 
without  receiving  any  compensation  whatever  for  his 
services,  such  agreement  is  good,  and  the  court  may 
properly  disallow  his  claim  for  such  services.99 

94  Drake  v.  Drake,  82  N.  C.  443 ;  Woodruff  v.  Lounsberry,  41  N.  J.  Eq. 
699;  Webb  v.  Pec%  131  Mich.  539,  92  N.  W.  104.     The  Michigan  statute 
is  the  same  as  ours,  and  in  the  latter  case  it  was  held  that  the  commission 
was  for  collecting  and  accounting,  and  on  his  annual  account  he  should, 
not  credit  himself  with  a  commission  on  uncollected  assets.     The  court 
clearly  intimated  that  he  would  not  be  entitled  to  a  commission  on  assets 
in  his  possession  not  actually  collected. 

95  Bassett  v.   Miller,  8   Md.  548;   Waddill  v.  Martin,  38   N.   C.  562; 
Walker's  Estate,  9  Serg.  &  E.  (Pa.)  223. 

96  Terrell  v.  Eowland,  9  Ky.  Law  Eep.  258,  4  S.  W.  825;  Dwyer  v. 
Kalteyer,  68  Tex.  554,  5  S.  W.  75. 

97  Eev.  Stats.,  c.  17,  §  117,  [1381]. 

98  Miller  v.  Congdon,  14  Gray  (Mass.),  114. 

99  Morton  v.  Johnston,  124  Mich.  561,  83  N.  W.  369. 

(694) 


Chap.  32]  ACCOUNTING.  §  421 

§  421.    Fees  and  special  compensation. 

Additional  compensation  may  be  allowed  an  exec- 
utor or  administrator  whenever  the  court  finds  the 
sendees  performed  were  not  such  as  are  required  of 
an  executor  or  administrator,  and  their  allowance  rests 
largely  in  the  discretion  of  the  county  judge.100 

Such  services  include  hunting  up  witnesses  for  pro- 
ponents in  a  case  where  the  will  was  contested;  con- 
sulting with  and  advising  almost  daily,  for  a  long  time, 
a  surviving  partner  of  the  decedent  who,  according  to 
the  terms  of  the  will,  was  settling  up  a  large  busi- 
ness;101 services  connected  with  the  settlement  of  a 
large  estate  with  assets  in  different  places  which  re- 
quired much  traveling,  the  executor  devoting  his  entire 
time  to  the  business;102  successfully  compounding  a 
large  claim  against  the  estate;  for  looking  after  work 
on  a  contract  for  the  erection  of  a  building  partly  com- 
pleted by  decedent,  and  other  like  services  which  are 
not  within  the  scope  of  the  usual  duties  of  administra- 
tion and  have  resulted  profitably  to  the  estate.103  In 
order  to  secure  their  allowance,  the  representative 
must  show  what  they  are  and  their  value  to  the 
estate.104 

100  in  re  McCullough's  Estate,  31  Or.  86,  49  Pac.  886;  In  re  King's 
Estate,  113  Mich.  606,  71  X.  W.  1030. 

101  in  re  Brewster's  Estate,  113  Mich.  561,  71  N.  W.  1085. 

102  Wisner  v.  Mabley's  Estate,  74  Mich.  143,  41  N.  W.  835. 

103  In  re  Wilson's  Estate,   83  Neb.   225,   119  N.  W.  522;   Mower's 
Appeal,  48  Mich.  441,  12  N.  W.  646;   In  re  Partridge's  Estate,  31  Or. 
279,  51  Pac.  82;   In  re  Osburn's  Estate,  36  Or.  14,  58  Pac.  521;  In  re 
Young's  Estate,  97  Iowa,  218,  66  N.  W.  163. 

104  In  re  Wilson's  Estate,  83  Neb.  252,  119  N.  W.  522;  Steel  v.  Holla- 
day,   20   Or.  464,  25   Pac.  69;   Fitzgerald  v.  Paisley,   110  Iowa,   98,  81 
N.  W.  181. 

(695) 


§  422  PEOBATE    AND    ADMINISTRATION.       [Chap.  32 

An  executor  or  administrator  forfeits  his  fees  when- 
ever a  loss  has  occurred  to  the  estate  on  account  of 
his  willful  default,  neglect  or  misconduct,105  but  if  his 
failure  is  due  to  misapprehension  of  facts  and  not  to 
bad  faith,  he  is  entitled  to  them.106  He  forfeits  addi- 
tional compensation  to  which  he  would  be  otherwise 
entitled  by  permitting  the  funds  to  lie  idle  for  years 
when  they  could  have  been  invested.107 

§  422.  Notice  of  hearing  on  administration  account. 
Before  the  administration  account  of  any  executor 
or  administrator  shall  be  allowed,  notice  thereof  shall 
be  given  to  all  persons  interested  of  the  time  and  place 
of  examining  and  allowing  the  same,  and  such  notice 
may  be  given  personally  to  such  persons  as  the  county 
judge  shall  judge  to  be  interested,  or  by  public  notice 
under  the  direction  of  the  court,  provided  that,  if 
notice  to  creditors  to  present  their  claims  and  demands 
against  such  estate  has  been  duly  given  as  provided 
by  law,  and  such  time  has  fully  expired,  and  no  claims 
have  been  filed  against  such  estate,  or  in  case  claims 
have  been  filed  against  the  estate,  and  the  same  have 
been  fully  paid  and  satisfied  according  to  the  order  of 
the  court,  and  such  estate  is  fully  solvent,  then,  in 
either  case,  the  county  court  may,  on  written  request 
of  the  heirs  of  such  estate,  settle  with  the  executor  or 
administrator,  without  either  public  or  personal  notice 
being  given  to  such  heirs  of  such  settlement,  and  the 
same  shall  be  as  valid  as  though  public  or  personal 

105  St.  Paul  Trust  Co.  v.  Kitson,  62  Minn.  408,  65  N.  W.  74. 

106  Miller's   Appeal,   113   Pa.   459,   6  Atl.   715;    McKnight's  Exrs.   v. 
Walsh,  24  N.  J.  Eq.  498. 

107  In  re  Young's  Estate,  97  Iowa,  218,  66  N.  W.  163. 

(696) 


Chap.  32]  ACCOUNTING.  §  422 

notice  has  been  given.  This  provision  does  not  include 
a  debt  secured  by  a  mortgage  or  other  lien,  and  in  such 
case  the  creditor  may  rely  on  his  security.108 

The  foregoing  provisions  in  regard  to  notice  or  cita- 
tion must  be  strictly  construed,  if  the  same  is  not 
waived  in  the  manner  above  provided.  A  settlement 
without  it  would  not  be  binding  upon  those  interested 
who  were  without  notice,  and  not  present  in  court.109 

The  safer  practice  is  to  give  notice  by  publication. 
It  has  not  yet  been  determined  who  are  the  heirs  of 
the  decedent,  and,  if  any  omit  to  sign  the  request  and 
waiver,  serious  complication  might  arise.  The  whole 
manner  of  notice  rests,  however,  in  the  discretion  of 
the  court. 

Form  No.  184. 
WAIVER  OF  NOTICE  OF  HEARING  ON  FINAL  ACCOUNT. 

[Title  of  Cause  and  Court.] 

Whereas,  it  appears  from  the  records  and  files  in  this  proceeding 
that  notice  to  creditors  to  present  their  demands  against  said  estate 
has  been  duly  given,  and  such  time  has  fully  expired,  and  all  the  claims 
which  have  been  allowed  against  said  estate  have  been  fully  paid  and 
satisfied  by  C.  D.,  administrator  of  said  estate,  under  the  order  of  the 
court,  and  no  appeal  has  been  taken  to  the  district  court  from  the 
disallowance  of  any  claims  or  demands  by  said  court,  and  said  estate 
is  fully  solvent,  we,  G.  H.  and  N.  M.,  heirs  of  said  A.  B.,  respectfully 
request  that  C.  D.,  administrator  of  said  estate,  be  permitted  to  have 
his  final  account  as  such  administrator  determined  and  allowed  by  said 
court  without  the  giving  of  the  public  or  personal  notice  required  by 
law. 

Dated  this day  of  ,  19—. 

(Signed)     G.   H. 
N.  M. 

108  Rev.  Stats.,  c.  17,  §  250,  [1514]. 

109  Mr-Mullen  v.  Brasleton,  81  Ala.  442,  1  South.  778;  Grant  v.  Hughes, 
94  N.  C.  231. 

(697) 


§422 


PROBATE  AND  ADMINISTRATION.  [Cliap.  32 


If  the  executor  or  administrator  fails  to  appear  after 
due  and  legal  service  of  the  citation,  or  if  he  appears 
before  the  court  and  neglects  or  refuses  to  account,  the 
court  has  power  to  settle  and  determine  his  account 
in  his  absence.110 

Form  No.  185. 

FINAL  ACCOUNT  OF  EXECUTOR  OB  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

The  undersigned,  C.  D.,  administrator  of  the  estate  of  A.  B.,  de- 
ceased, herewith  submits  the  final  account  of  his  administration  to  said 
court  as  follows: 

C.  D.,  Administrator,  in  Account  with  the  Estate  of  A.  B.,  Deceased. 
DR.  CR. 


19  

$  

19     .  . 

$ 

[In  this  column 
should  be  entered 
all  cash  receipts.] 

[In    this    column 
should    be    entered 
all     disbursements, 
including    expenses 
of     administration 
and    pay    for    ser- 
vices.] 
Balance    on    hand 

$  

$  

All  claims  allowed  against  the  estate  of  the  said  A.  B.,  together 
with  funeral  charges,  expenses  of  the  last  sickness,  and  costs  and  ex- 
penses of  administering  said  estate,  have  been  paid  in  full.  Of  the 
personal  assets  of  the  estate  of  the  said  A.  B.  there  still  remains  in 
my  hands,  undisposed  of,  the  following  described  property  [give  items 
of  personalty  on  hand],  and  also  said  balance,  as  appears  by  the  fore- 
going account,  of  dollars  ($ ).  Dower  has  been  awarded 

the  widow  of  said  A.  B.,  C.  B.,  in  the  following  described  property 
[describe  lands  set  out  to  widow  for  dower].  Of  the  real  estate  of 
said  A.  B.,  deceased,  there  remains  in  my  possession,  undisposed  of,  the 
following  described  lands  [describe  all  lands  not  sold],  which  are  to  be 
distributed  to  the  heirs  at  law  of  said  decedent. 

The  undersigned,  C.  D.,  administrator,  prays  that  this  account  be 
allowed  as  his  final  account  of  his  administration,  and  that  upon  payment 

no  Rutenic  v.  Hamaker,  40  Or.  451,  67  Pac.  192. 
(698) 


Chap.  32]  ACCCWNTING.  §  422 

and  delivery  of  the  assets  in  his  possession  to  the  parties  entitled  thereto, 
he   be   discharged. 

(Signed)     C.  D., 

State  of  Nebraska,  Administrator. 
County, — ss. 

I,  C.  D.,  do  solemnly  swear  that  the  foregoing  account  is  just  and 
true,  and  that,  to  the  best  of  my  knowledge  and  belief,  I  have  therein, 
accounted  for  all  the  assets  and  effects  of  said  A.  B.  that  have  come 
into  my  possession  or  knowledge. 

(Signed)     C.  D. 

Subscribed  in  my  presence  and  sworn  to  before  me  this  day 

of ,  19—. 

(Signed)     J.  K., 
County  Judge. 

Under  the  Oregon  practice,  when  the  final  account 
of  the  administration  is  properly  filed  with  vouchers 
for  payments,  it  is  the  duty  of  the  court  or  judge  to 
appoint  a  day  for  the  hearing  of  objections  thereto  and 
the  settlement  thereof,  and  shall  direct  the  executor  or 
administrator  to  give  notice  thereof  in  some  newspaper 
published  in  the  county,  and  designated  by  said  exec- 
utor or  administrator,  if  there  be  one,  or  otherwise  in 
such  newspaper  as  may  be  designated  by  the  court  or 
judge,  as  often  as  once  a  week  for  four  successive 
weeks,  and  oftener  if  the  court  or  judge  shall  so 
direct.111 

Form  No.  186. 
CITATION    ON    HEAEING    OF    FINAL    ACCOUNT. 

[Title  of  Cause  and  Court.] 
State  of  Nebraska, 


County, — ss. 


To  All  Persons  Interested  in  the  Estate  of  A.  B.,  Deceased: 

You   are   hereby   notified   that   on   the   day   of   ,   19 — , 

C.  D.,  administrator  of  the  estate  of  A.  B.,  deceased,  filed  in  said  court 
his  final  account  as  said  administrator,  and  that  said  final  account  will 

"1  L.  O.  L.,  §  1285. 

(699) 


§  423  PROBATE    AND   ADMINISTRATION.          [Chap.  32 

be  heard  on  the  day  of  ,  19 — ,  at  the  hour  of  10  o'clock 

A.  M.,  at  the  county  courtroom  in  the  city  of  ,  in  said  county; 

and  you  are  hereby  cited  to  appear  at  the  time  and  place  above  desig- 
nated, and  show  cause,  if  such  exists,  why  said  account  should  not  be 
allowed. 

Dated  this day  of ,  19 — . 

(Signed)     J.   K., 
County  Judge. 

§  423.    Hearing  on  the  account. 

The  hearing  on  the  final  account  is  substantially  a 
review  by  the  court  of  all  the  financial  transactions 
between  the  estate  and  the  executor  or  administrator. 
The  account  must  be  sworn  to  and  vouchers  for  all  dis- 
bursements filed  in  court  at  least  seven  days  before 
the  date  set  for  hearing.  A  neglect  to  verify  it  and 
file  the  vouchers  within  the  seven  days  does  not  take 
away  the  power  of  the  court  to  hear  the  account,  but 
places  the  burden  of  proof  as  to  each  and  every  item 
on  the  executor  or  administrator.112 

If  all  the  vouchers  are  filed  as  required  and  no  objec- 
tions are  made,  and  service  of  notice  of  the  hearing 
had  as  ordered  by  the  court,  unless  such  service  was 
expressly  waived,  the  representative's  testimony  is  all 
the  evidence  required,  provided  that  the  disbursements 
appear  to  be  lawful  and  all  the  estate  accounted  for. 

An  heir,  legatee,  creditor  or  any  person  interested 
in  the  estate  may  file  objections  to  the  account  or  any 
particular  item  or  items,  excepting,  of  course,  a  cred- 
itor whose  claim  has  been  satisfied.113  A  legatee  en- 
titled to  possession  of  a  legacy  after  he  becomes  of  age, 
the  legacy  in  the  meantime  to  be  enjoyed  by  his 

112  Rev.  Stats.,  c.  17,  §  245,  [1509]. 

us  In  re  Whiton's  Estate,  86  Neb.  367,  125  X.  W.  606;  L.  O.  L., 
§  1286. 

(700) 


Chap.  32]  ACCOUNTING.  §  423 

parents,  it  has  been  held,  does  not  have  a  sufficient 
interest  to  object  to  the  account.114 

When  proper  vouchers  are  filed,  the  hearing  becomes 
substantially  a  trial  of  the  issues  raised  by  the  objec- 
tions, and  the  evidence  of  an  objector  must  be  con- 
fined to  the  items  which  he  attacks.115  If  it  is  sought 
to  charge  the  representative  with  additional  assets,  the 
burden  of  proof  is  on  the  objector,  but  if  his  right  to 
credits  is  attacked,  the  burden  is  on  him.116  The 
vouchers  are  not  binding  on  the  beneficiaries  of  the 
estate,  and  do  not  change  the  burden  of  proof  if  at- 
tacked. An  objector  may  show  that  they  were  obtained 
from  him  by  fraud  or  misrepresentation,  and  do  not 
represent  actual  payments.117 

Amended  or  supplemental  objections  may  be  filed  at 
any  time  to  conform  to  the  proof.118 

Under  the  Oregon  practice,  objections  may  be  filed 
against  a  claim  paid  by  the  executor  or  administrator 
on  the  order  of  the  court  made  after  presentation  and 
allowance,  and  the  claim  must  then  be  proved  in  the 
same  manner  as  in  the  special  proceeding  before  the 
county  court  or  in  an  action  thereon  in  the  county  or 
circuit  court.  Its  allowance  by  the  representative  is 
not  even  prima  facie  evidence  of  its  validity.119  It  is 

114  Tunnicliff  v.  Fox,  68  Neb.  811,  94  N.  W.  1032. 

us  In  re  Whiton's  Estate,  86  Neb.  367,  125  X.  W.  606;  Warren  v. 
Hendricks,  40  Or.  139,  66  Pac.  607;  In  re  Roach's  Estate,  50  Or.  190, 
92  Pac.  118. 

lie  In  re  Mall's  Estate,  80  Neb.  233,  114  N.  W.  156;  In  re  Roach's 
Estate,  50  Or.  190,  92  Pac.  118;  In  re  Bayley,  67  N.  J.  Eq.  566,  59 
Atl.  215. 

in  Westover  v.  Carman's  Estate,  49  Neb.  397,  68  N.  W.  501. 

us  In  re  Roche's  Estate,  50  Or.  190,  92  Pac.  118. 

li»  In  re  Chambers'  Estate,  38  Or.  131,  62  Pac.  1013;  Irvine  v.  Beck, 
62  Or.  596,  125  Pac.  834. 

(701) 


§  423  PROBATE   AND  ADMINISTRATION.         [Chap.  32 

incumbent  on  a  party  filing  objections,  if  his  right  to 
an  interest  in  the  estate  is  attacked,  to  prove  such 
right.120 

Form  No.  187. 

OBJECTIONS    TO    EXECUTOR'S    OB   ADMINISTRATOR'S    FINAL 

ACCOUNT. 
[Title  of  Cause  and  Court.] 

Comes  now  E.  F.,  by  F.  W.  B.,  his  attorney,  and  objects  to  the  allow- 
ance of  the  final  account  of  C.  D.  as  administrator  of  said  estate  for 
the  following  reasons: 

First.  Said  administrator  retained  in  his  possession  on  deposit  in 
the  First  National  Bank  of  Omaha,  Nebraska,  the  sum  of  ten  thousand 
dollars  for  the  period  of  one  year,  and  has  not  accounted  for  any  interest 
thereon. 

Second.  Said  administrator  used  a  large  amount  of  the  assets  of 
said  estate  in  his  own  business,  and  mingled  them  with  his  own  funds, 
and  derived  large  profits  therefrom,  and  has  not  accounted  for  any 
interest  thereon. 

Fourth.  Said  administrator  neglected  to  sell  certain  assets  of  the 
estate,  to  wit,  sixty  head  of  hogs,  and,  by  reason  of  said  neglect,  said 
estate  has  sustained  a  loss  of  dollars. 

Fifth.  Said  administrator  performed  no  special  or  extraordinary 
services  in  the  administration  of  said  estate  for  which  he  is  entitled 

to  extra  compensation  above  his  statutory  commission,  and  item  

of  his  said  account  should  not  be  allowed. 

Sixth.     Said  administrator  received  from  one  G.  H.,  of  said  county, 

the   sum  of dollars   on   an   account   due  said  estate   from  said 

G.  H.,  and  has  failed  to  account  for  the  same. 

Seventh.     That  item  of  said  administration  account  should  be 

disallowed  for  the  reason  that  the  payment  so  charged  to  have  been 
made  to  L.  N.  was  not  in  truth  and  in  fact  paid  to  him,  and  his  receipt 
therefor  was  obtained  by  said  administrator  by  means  of  false  and 
fraudulent  representations  made  by  him,  said  C.  D.,  administrator,  to  said 
L.  N.  [State  specific  objections  to  each  item  claimed  to  be  not  a  proper 
credit,  and  give  items  with  which  he  should  be  charged.] 

Dated  this day  of ,  19 — . 

(Signed)      E.  F., 
By  G.  G.  M.,  His  Attorney. 

120  Ollschlager's  Estate,  50  Or.  580,  89  Pac.  1049. 
(702) 


Chap.  32]  ACCOUNTING.  §  424 

§  424.    Hearing  on  account — Concluded. 

In  many  estates  the  validity  of  all  the  disbursements 
of  the  executor  or  administrator  is  determined  on  the 
hearing  on  his  final  account.  An  objector  has  thus  a 
right  to  practically  review  the  entire  administration. 
Liability  for  the  costs  of  the  court  or  its  officers  may 
be  raised,  and  exorbitant  funeral  charges,  more  expen- 
sive than  the  social  and  financial  standing  of  the  dece- 
dent warrant,  cut  down  to  a  proper  figure,121  validity 
of  payments  made  to  discharge  liens  determined,  also 
all  other  charges  and  expenses  growing  out  of  the  cus- 
tody and  management  of  the  assets. 

Payment  into  court  of  money  due  on  claims  under 
order  of  such  court,  though  it  may  be  erroneous  and 
without  any  authority  of  law,  if  made  in  good  faith, 
protects  the  administrator,  but  not  the  judge  or  his 
bondsmen.122  The  right  of  the  county  court  to  cut  out 
attorney  fees  previously  allowed  on  ex  parte  orders, 
because  the  litigation  appeared  to  be.  solely  for  the 
benefit  of  the  attorneys  and  not  the  estate,  has  been 
recognized.123 

Credits  claimed  for  payment  of  ordinary  unsecured 
debts  not  filed  and  allowed  by  the  county  court  should 
be  stricken  out  by  the  court  of  his  own  motion.124 
Those  for  the  feed  and  care  of  livestock  must  be  proved 
as  in  management  of  the  property,  such  as  fire  insur- 
ance premiums,  taxes,  ordinary  repairs  as  are  required 
under  the  statutes  and  an  action  at  law.125 

121  Foley  v.  Brocksmit,  119  Iowa.  457,  93  X.  W.  334. 

122  Wheeler  v.  Barker,  51  Neb.  846,  71  N.  W.  750. 

123  Bullion  v.  Ribble,  87  Neb.  700,  128  N.  W.  32. 

124  Johnson  v.  Pulver,  1  Neb.  Unof.  290,  95  N.  W.  697. 

125  In  re  Irwin's  Estate,  152  Iowa,  323,  131  N.  W.  57. 

(703) 


§  424  PEOBATE    AND   ADMINISTRATION.          [Chap.  32 

If  the  attorney  fees  paid  or  which  the  representative 
asks  to  be  allowed  appear  large  in  proportion  to  the 
value  of  the  estate,  there  should  be  other  evidence  of 
their  reasonableness,  etc.,  than  that  of  the  interested 
parties,  and  the  court  should  look  into  them  care- 
fully.126 Attorneys  for  the  beneficiaries  should  never 
be  allowed  any  fees  at  the  expense  of  the  estate.127 

Additional  compensation  should  not  be  granted  un- 
less the  executor  or  administrator  proves  that  he  per- 
formed extra  services.  Its  allowance  is  largely  in  the 
discretion  of  the  court,  and  the  order  will  be  rarely 
disturbed.128 

The  indebtedness  of  the  representative  to  the  estate 
can  be  fixed  on  the  hearing,129  and  also  the  indebted- 
ness of  the  estate  to  him.  If  his  claim,  or  the  principal 
part  of  it,  was  dishonest,  and  he  knew  it  to  be  such 
and  insisted  on  its  allowance,  causing  expensive  liti- 
gation, the  estate  is  not  liable  for  his  costs  and  attorney 
fees.130 

He  is  chargeable  with  property  omitted  and  with 
any  waste  or  loss  to  the  estate  due  to  his  negligence  or 
wrongful  act.131 

126  In  re  Wilson's  Estate,  83  Neb.  252,  119  N.  W.  522. 

127  Cowie  v.  Strohmeyer,  150  Wis.  401,  136  1ST.  W.  956. 

128  In  re  Fischer's  Estate,  158  Mich.  1,  122  N.  W.  257. 

129  In  re  Mall's  Estate,  80  Neb.  233,  114  N.  W.  56. 

130  Mackin  v.  Hobbs,  126  Wis.  216,  105  N.  W.  305. 

131  Hoffman  v.  Armstrong,  90  Md.   123,  44  Atl.  1012.     Our  supreme 
court  has  held  that  an  administrator  who  was  an  attorney  and  who 
secretly  collected  a  commission  of  twenty-five  per  cent  or  one  thousand 
two  hundred  and  fifty  dollars  from  a  claimant,  the  full  sum  being  paid 
by  a  part  of  the  heirs  without  knowledge  that  the  administrator  was 
retaining  such  commissions,  could  not  be  compelled  by  the  other  heirs 
to  account  for  it  in  his  final  accounting.     The  court  say  that  his  act 

(704) 


Chap.  32]  ACCOUNTING.  §  424 

If  he  has  occupied  any  of  the  real  estate,  and  the 
parties  are  unable  to  agree  on  the  rental  value  of  the 
same,  the  court  may  refer  the  matter  to  one  or  more 
disinterested  persons,  whose  award,  if  accepted  by  the 
court,  is  final.132 

The  hearing  on  the  final  account  is  one  of  the  most 
important  proceedings  connected  with  the  administra- 
tion. A  full  opportunity  should  be  given  all  inter- 
ested to  contest  its  allowance.  If  the  administrator  is 
guardian  of  minors,  or  if  minors  are  not  represented 
by  a  general  guardian,  a  guardian  ad  litem  may  be 
appointed.133 

The  account  of  an  executor  must  include  all  trans- 
actions affecting  legacies.  If  he  is  also  a  legatee,  the 
amount  received,  to  the  extent  of  his  legacy,  must  be 
charged  against  the  same,  less  his  lawful  commissions 
and  disbursements.134 

Form  No.  188. 

APPOINTMENT   OF   COMMISSIONERS   TO   DETERMINE  RENTS 
DUE  FROM  THE  PERSONAL  REPRESENTATIVE. 


State  of 


County, — ss. 


To  E.  F.,  of  County,  Nebraska. 

Whereas,  a  dispute  has  arisen  between  C.  D.,  administrator  of  the 
estate  of  A.  B.,  deceased,  and  the  beneficiaries  of  said  estate,  in  regard 
to  the  amount  due  from  said  C.  D.  to  said  estate  for  the  use  of  follow- 
ing described  premises  belonging  to  said  estate,  which  were  occupied  by 
him  pending  the  administration  of  said  estate  [describe  premises],  and 

was  "not  commendable,"  but  under  the  peculiar  circumstances  was 
not  misconduct.  In  re  Wilson's  Estate,  86  Neb.  175,  125  N.  W.  158. 
The  decision  was  by  a  divided  court. 

132  Rev.  Stats.,  c.  17,  §  243,  [1507]. 

133  Section  16,  supra. 

134  In  re  Knight's  Estate,  91  Neb.  127,  135  N.  W.  379. 

45— Pro.  Ad. 


§  425  PBOBATE   AND  ADMINISTRATION.          [Chap.  32 

said  parties  are  unable  to  agree  upon  the  sum  to  be  charged  against  said 
C.  D.  for  the  use  of  said  premises: 

You  are  hereby  appointed  a  commissioner  to  hear  the  evidence  ad- 
duced by  the  parties,  and  determine  therefrom,  as  well  as  from  an  in- 
spection of  said  premises,  at  your  discretion,  the  amount  justly  due  said 
estate  from  said  C.  D.,  administrator,  for  the  use  of  said  premises  above 
described. 

Dated  this day  of ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

§  425.    Order  allowing  final  account. 

The  order  allowing  an  executor's  or  administrator's 
final  account  is  in  the  nature  of  a  judgment  or  decree, 
and  is  therefore  conclusive  on  all  matters  involved  in 
it.  It  concludes  the  personal  representative  as  to  the 
balance  found  in  his  hands  for  distribution,  and  fixes 
the  basis  on  which  such  distribution  is  to  be  made.  It 
binds  the  estate  and  those  interested  therein.135  Its 
allowance  does  not  preclude  further  inquiry  as  to  assets 
subsequently  found  to  properly  belong  to  the  estate, 
and  which  do  not  appear  in  the  account  and  were  not 
passed  upon,  for  it  is  binding  only  on  matters  therein 
contained,136  and  it  does  not  affect  the  rights  and  lia- 
bilities of  distributees  between  themselves  in  regard 
to  assets  advanced  one  or  more  of  them  by  the  personal 
representative  pending  administration.13' 

The  county  court  has  power,  even  after  the  term, 
to  open  the  settlement  of  a  former  account  to  correct 
any  error  or  mistake  therein  except  as  to  items  in  dis- 

135  Bachelor  v.  Schmela,  49  Xeb.  37,  68  X.  V,T.  378;  Boales  v.  Fergu- 
son, 55  Neb.  565,  76  N.  W.  18;   Shelby  v.  Creighton,  65   Xcb.  485,  91 
N.  W.  369;  McCreary  v.  Creighton,  76  Xeb.  179,  107  X.  W.  240. 

136  Flanders  v.  Lane,  54  X.  H.  390;  McAfee  v.  Phillips,  25  Ohio  St. 
374. 

137  Sparhawk  v.  Bud's  Admr.,  9  Vt.  41. 

(706) 


Chap.  32]  ACCOUNTING.  §  425 

pute  which  have  been  previously  heard  and  deter- 
mined.138 

The  order  may  be  revised  or  amended  by  proceed- 
ings under  the  code,  the  same  as  any  other  judgment 
of  the  county  court,139  and  where  at  common  law  a 
court  of  equity  has  power  to  set  aside  an  account  for 
fraud  or  misrepresentation  of  the  personal  representa- 
tive,140 the  exclusive  original  jurisdiction  of  the  county 
court  over  administration  and  its  inherent  authority 
give  it  power  to  entertain  a  bill  in  equity  for  that  pur- 
pose.141 

Form  No.  180. 

ORDEH  ALLOWING  FINAL  ACCOUNT. 
[Title  of  Cause  and  Court.] 

Now,   on   this  day   of  ,   19 — ,   this   cause   came   on   for 

hearing  upon  the  final  account  of  C.  D.,  executor  of  said  estate;  and 
it  appearing  to  the  court  from  the  proof  on  file  that  all  persons  interested- 
in  said  estate  have  been  duly  notified  as  required  by  the  court,  and  after 
a  full  examination  of  said  account,  the  court  finds  that  the  same  is 
correct  in  all  respects,  and  ought  to  be  allowed. 

It  is  therefore  ordered  that  the  same  hereby  is  allowed  as  the  final 
account  of  said  C.  D.,  executor  of  the  estate  of  A.  B.,  deceased,  and  that, 
upon  the  payment  of  the  amount  for  distribution  now  in  his  hands  to 
the  parties  entitled  thereto,  and  who  are  to  be  hereafter  determined, 
he  will  be  discharged  from  said  trust. 

(Signed)       J.  K., 
County  Judge. 

138  Merrick  v.  Kennedy,  46  Neb.  264,  64  N.  W.  989. 

139  Civ.  Code,  §  648. 

140  Stevenson's  Admr.  v.  Phillips,  15  N.  J.  Eq.  236;  Lewis  v.  Williams, 
54  Mo.  200;   West  v.  Reavis,  13   Ind.  294;   Patterson  v.  Bell,  25  Iowa, 
149;   Pierce  v.  Irish,  31  Me.  254;   Montgomery  v.  Cloud,  27  S.  C.  188, 
3  S.  E.  196;  Bradley  v.  Bradley's  Admr.,  83  Va.  75,  1  S.  E.  477. 

141  Sec  Williams  v.  Miles,  63  Neb.  859,  89  N.  W.  341,  68  Neb.  463, 
94  N.  W.  705. 

k(707) 


§  426  PROBATE    AND    ADMINISTRATION.         [Chap.  32 

In  Oregon  the  order  on  the  hearing  on  administra- 
tion account  is  a  final  decree,  and  appealable  as  such 
to  the  circuit  court.142  It  may  be  set  aside  by  an  action 
in  equity  in  the  circuit  court.143  The  county  court  may 
also  set  it  aside  at  the  term  at  which  it  is  entered  or 
at  a  subsequent  term  for  manifest  mistakes  or  errors 
appearing  therein.144  The  court  may  also  permit  the 
filing  of  a  further  or  supplemental  report  which  may 
be  heard  and  determined  after  notice  to  all  parties  in- 
terested in  the  same  manner  as  an  original  account.145 

§  426.    Coexecutors  and  coadministrators. 

Coexecutors  and  coadministrators  who  have  given 
a  joint  bond  are  jointly  liable  and  make  joint  accounts, 
but  where  several  bonds  have  been  given,  as  between 
themselves  and  also  as  to  creditors,  legatees  and  dis- 
tributees, each  is  liable  as  a  principal  for  his  own 
acts  and  for  what  he  receives  and  applies,  unless  he 
joins  with  the  others  in  the  direction  or  application  of 
the  funds.146  He  accounts  separately,  can  only  be  com- 
pelled to  account  for  what  he  received,  and  is  not  liable 
on  the  accounting  for  the  wrongful  act,  causing  a  loss 
to  the  estate,  of  his  corepresentative  who  assumed  the 
entire  management  of  the  estate  or  of  that  matter  in 
which  the  loss  occurred,  when  he  did  not  acquiesce  in 
such  act.147  In  such  case  the  liability  of  the  corepre- 

142  In  re  Plunkett's  Estate,  33  Or.  416,  54  Pac.  152. 
l«  Froebich  v.  Lane,  45  Or.  23,  76  Pac.  351;  Johnson  v.  Savage,  50 
Or.  284,  91  Pac.  1082. 

144  Cross  v.  Baskett,  17  Or.  82,  21  Pac.  47. 

145  Dray  v.  Bloch,  29  Or.  351,  45  Pac.  772. 

146  Peter  v.  Beverly,  10  Pet.  (U.  S.)  532,  9  L.  Ed.  522. 

147  Cheever  v.  Ellis,  144  Mich.  477,  108  N.  W.  390;  Wilson's  Appeal, 
115  Pa.  95,  9  Atl.  473;  In  the  Matter  of  Peck's  Estate,  31  App.  Div. 
407,  52  N.  Y.  Supp.  1028. 

(708) 


Chap.  32]  ACCOUNTING.  §  427 

sentative  is  that  of  a  surety  for  his  delinquent  asso- 
ciate.148 

Where  the  loss  occurred  through  the  joint  negligence 
of  the  representatives,149  or  one  had  knowledge  of  the 
transaction  and  apparently  acquiesced  in  it,  or  ex- 
pressly assented  to  it,150  or  where  the  parties  acted 
jointly,  were  together  almost  daily,  and  the  acts  of 
each  could  have  been  known  to  the  other  by  the  exer- 
cise of  reasonable  diligence,151  the  creditors  or  bene- 
ficiaries can  look  to  each  as  principals.  Knowledge 
of  the  misapplication  must  have  been  had  at  the  time 
it  occurred.  Merely  permitting  the  representative  to 
possess  the  assets  without  going  further  and  concur- 
ring in  the  application  of  them  does  not  make  a  joint 
liability.152  Negligence  of  a  coexecutor  in  appointing 
and  looking  after  an  agent  cannot  be  imputed  to  his 
associate  who  had  nothing  to  do  with  it.153 

The  representative  who  is  not  at  fault  cannot  be  com- 
pelled to  contribute  at  the  suit  of  his  corepresenta- 
tive.154 

§  427.    Equitable  action  to  recover  assets. 

There  is  one  class  of  cases  where  it  is  necessary  for 
a  creditor  to  go  into  the  district  court  to  enforce  an 
ordinary  unsecured  claim  against  an  estate,  by  an  ac- 
tion for  accounting.  Where  the  estate  appeared  to  be 

148  Section  457,  post. 

149  in   the  Matter  of  Peck's   Estate,  41   App.  Div.  407,  52  N.  Y. 
Supp.  1028. 

150  In  re  Niles'  Estate,  113  N.  Y.  547,  21  N.  E.  687. 

151  In  re  Irvine's  Estate,  203  Pa.  603,  53  Atl.  502. 

152  Peter  v.  Beverly,  10  Pet.  (U.  S.)  532,  9  L.  Ed.  522. 

153  Cocks  v.  Haviland,  124  N.  Y.  431,  26  N.  E.  976. 

154  Cheever  v.  Ellis,  144  Mich.  477,  108  N.  W.  300. 

(709) 


§  428  PROBATE   AND  ADMINISTEATION.          [Chap.  32 

insolvent  because  of  a  fraudulent  conspiracy  between 
the  administrator  and  the  county  judge,  a  creditor 
may  bring  an  action  in  behalf  of  all  similarly  situated 
against  the  parties  to  compel  them  to  account  for  the 
assets  of  the  estate.  It  is  true  that  the  creditors  have 
a  remedy  at  law,  but  in  the  interests  of  justice  they 
are  not  compelled  to  rely  on  it.155 

§  428.  Accounting  by  former  personal  representative 
with  administrator  de  bonis  non. 

The  court  has  power  to  require  an  executor  whose 
term  of  office  is  ended  to  render  an  account  and  pay 
over  all  moneys  in  his  hands  and  deliver  all  the  per- 
sonal property  belonging  to  the  estate  to  his  succes- 
sor.156 It  is  a  power  which  exists  irrespective  of  the 
statute  based  on  the  exclusive  jurisdiction  of  the  court 
over  administration  accounts.157  On  such  hearing  the 
burden  of  proof  is  on  the  former  representative  to  give 
a  strict  account  of  what  has  become  of  the  property 
which  came  into  his  possession.158  The  citation  may 
issue  though  the  representative  has  been  formally  dis- 
charged, it  appearing  that  he  has  never  rendered  an 
account  and  still  has  assets  of  the  estate  in  his  pos- 
session.159 

If  the  former  representative  is  dead,  the  citation 
may  issue  to  his  personal  representatives  and  his 

155  McGlave  v.  Fitzgerald,  67  Neb.  417,  93  N.  W.  692. 

156  Rev.  Stats.,  c.  17,  §248,  [1512], 

157  Butenic  v.  Hamakar,  40  Or.  253,  67  Pac.  196. 

158  Gatch  v.  Simpson,  40  Or.  496,  66  Pac.  688;  Rutenic  v.  Hamakar, 
40  Or.  253,  67  Pac.  199. 

159  Betcher  v.  Betcher  (Minn.),  86  N.  W.  1. 

(710) 


Chap.  32]  ACCOUNTING.  §  428 

bondsmen,  the  bondsmen  being  in  such  case  necessary 
parties.160 

The  order  of  the  court  fixing  the  amount  due  and 
directing  its  payment  is  binding  on  the  parties  thereto, 
unless  set  aside  on  appeal  or  for  fraud  in  an  action  in 
equity.161  At  common  law  an  administrator  de  bonis 
non  only  administered  such  property  as  had  not  been 
converted  into  money  by  his  predecessor  and  the  only 
remedy  of  those  interested  in  the  estate  was  by  action 
against  him  and  his  bondsmen.162 

160  Gateh  v.  Simpson,  40  Or.  496,  66  Pac.  688. 

161  Crombie  v.  Engle,  19  N.  J.  L.  83. 

162  Bradshaw  v.  Commonwealth,  3  J.  J.  Marsh.  (Ky.)  332. 

(711) 


CHAPTER  XXXIII. 

DIVISION  OF  THE  ESTATE. 

§  429.  Descent  of  Eeal  Estate  to  Surviving  Spouse. 

430.  Barring  Inheritances. 

431.  Election  Between  Will  and  Distributive  Share. 

432.  Election  on  Behalf  of  Survivor. 

433.  Effect  of  Rejection  of  Will. 

434.  Descent  of  Eeal  Estate  to  Heirs. 

434a.  Descent  of  Real  Estate  to  Heirs — Concluded. 

435.  Descent  of  Real  Estate  to  Heirs — Concluded. 

436.  Kindred  of  the  Half  Blood. 

437.  Descent  of  Estate  of  Illegitimate. 

438.  Right  of  Illegitimate  to  Inherit. 

439.  Inheritance  by  Adopted  Children. 

440.  Posthumous  Children. 

441.  Share  of  Child  not  Provided  for  by  Will; 

442.  Rights  of  Nonresident  Aliens. 

443.  Distribution  of  Personalty. 

444.  Exceptions  to  Right  to  Inherit. 

445.  Escheats. 

446.  Personalty  Distributed  as  Realty. 

447.  Decree  of  Distribution.  ' 

448.  Petition  for  Decree. 

449.  Hearing  on  Application  for  Distribution. 

450.  Requirements  of  Decree. 

450a.  Special  Proceedings  for  Determining  Heirship.' 
450b.  Citation  and  Service. 
450c.  Hearing  on  the  Petition. 
450d.  Decree  Designating  Heir. 

451.  Nature  of  Decree. 

452.  Discharge  of  Executor  or  Administrator. 

§  429.    Descent  of  real  estate  to  surviving  spouse. 

Upon  the  death  of  any  person  leaving  a  husband  or 
wife  surviving,  such  survivor  takes  an  estate  in  fee 
in  all  the  real  estate  of  which  such  person  died  seised 
of  an  estate  of  inheritance  at  any  time  during  mar- 
(712) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  429 

riage,  or  in  which  he  or  she  possessed  an  estate  either 
legal  or  equitable  at  the  time  of  his  or  her  death, 
which  has  not  been  lawfully  conveyed  by  the  husband 
or  wife  while  a  resident  of  this  state,  which  has  not 
been  sold  under  execution  or  judicial  sale,  and  which 
has  not  been  lawfully  devised  subject  to  his  or  her 
debts  and  the  right  of  homestead  as  follows: 

First.  One-fourth  part  if  the  survivor  is  not  the 
parent  of  all  the  children  of  the  deceased,  and  there  be 
one  or  more  children,  or  the  issue  of  one  or  more  de- 
ceased children  living. 

Second.  One-third  part  if  the  survivor  is  the  parent 
of  all  the  children  of  the  deceased,  and  there  be  two 
or  more  children,  or  one  child  and  the  issue  of  one 
or  more  deceased  children  surviving. 

Third.  One-half  if  the  survivor  is  the  parent  of  all 
the  children  of  the  deceased  and  there  be  only  one 
child  or  the  issue  of  a  deceased  child  surviving. 

Fourth.  One-half  if  there  be  no  children  or  the 
issue  of  any  deceased  child  or  children  surviving.1 

Fifth.  The  entire  property  if  there  be  no  relatives 
of  the  blood  of  the  decedent  surviving.2 

The  property  which  the  survivor  takes  under  the 
statute  is  in  lieu  of  dower  or  curtesy,  and  during  the 
life  of  the  deceased  the  survivor  had  an  inchoate  right 
therein  which  became  vested  on  the  death  of  the  owner 
of  the  fee.  It  is  in  a  certain  sense  community  prop- 
erty, and  the  husband  and  wife  silent  partners  therein, 
with  the  right  of  the  holder  of  the  fee  to  manage  such 
property,  and  in  the  manner  provided  by  law  sell  or 

1  Whitford  v.  Kinzl,  92  Neb.  378,  138  N.  W.  597. 

2  Eev.  Stats.,  c.  17,  §  1,  [1265]. 

(713) 


§  430  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

exchange  for  other  property,  which  at  once  becomes 
subject  to  the  same  right.  Neither  party  is  an  heir 
of  the  other,  but  takes  by  virtue  of  the  marital  re- 
lation.3 It  passes  to  the  surviving  spouse  when  the 
will  of  the  deceased  makes  no  provisions  for  the  sur- 
vivor.4 

Under  the  Oregon  statutes  no  estate  in  fee  passes 
to  the  surviving  husband  or  wife,  excepting  only  when 
there  are  no  children  or  lineal  descendants  surviving.5 
Instead,  an  enlarged  estate  of  dower  and  a  modified 
estate  of  curtesy,  identical  with  the  enlarged  dower, 
is  given.6 

§  430.    Barring  inheritances. 

The  right  of  a  married  man  or  woman  to  inherit  a 
part  or  all  of  the  real  estate  of  which  his  or  her  spouse 
was  seised  of  an  estate  of  inheritance  at  any  time 
during  marriage  may  be  barred  by  a  conveyance  exe- 
cuted by  both  husband  and  wife  while  residents  of 
this  state,  or,  if  either  be  not  a  resident  of  this  state, 
by  a  conveyance  by  either  both,  or  the  one  seised  of 
the  fee  at  the  time  of  such  conveyance  and  also  by 
judicial  sale  during  the  lifetime  of  the  owner  of  the 
title.7 

Such  rights  may  also  be  barred  by  an  antenuptial 
contract  in  writing,  signed  by  both  parties  and  ac- 
knowledged in  the  manner  required  by  law  for  con- 

3  Strahan  v.  Wayne  County,  93  Neb.  828,  142  N.  W.  678;  Gaster  v. 
Gaster's  Estate,  92  Neb.   6,   137  N.   W.   900;   Johnson  v.  Richardson 
(Neb.),  154  N.  W.  314;  Kohny  v.  Dunbar,  21  Idaho,  258,  121  Pac.  544. 

4  Gaster  v.  Gaster's  Estate,  92  Neb.  6,  137  N.  W.  900. 

5  Section  434a,  post. 

6  Chapter  XXIXa. 

7  Eev.  Stats.,  e.  17,  §  5,  [1269]. 

(714) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  430 

veyances  of  real  estate,  or  executed  in  conformity  with 
the  laws  of  the  estate  where  made.8  Homestead  rights 
will  not  be  barred  unless  expressly  included  therein.9 

The  contract  must  be  entered  into  before  marriage. 
An  agreement  between  husband  and  wife  by  which 
each  forever  relinquishes  any  and  all  rights  under  the 
statute  in  the  lands  of  the  other  is  void.10  It  must  be 
definite  and  complete.  If  it  appears  to  be  executory, 
and  some  act  remains  to  be  performed  after  marriage, 
it  is  not  enforceable.11  Where  property  is  conveyed 
by  it,  the  marriage  has  been  held  a  good  and  sufficient 
consideration,  even  as  against  creditors,  it  appearing 
that  the  wife  was  ignorant  of  the  fraudulent  intent  of 
the  husband.12 

Each  party  may  by  such  contract  relinquish  all  his 
or  her  future  rights  in  the  property  of  the  other,  the 
marriage  being  regarded  as  a  sufficient  consideration 
to  sustain  it.13 

A  separation  agreement  between  husband  and  wife 
while  living  apart  from  each  other,  by  which  certain 
property  is  conveyed  to  a  trustee  for  the  wife,  said 
trustee  having  power  to  convey  to  parties  designated 
at  her  death,  and  a  like  arrangement  as  to  the  hus- 
band's property,  have  been  held  valid  during  the  life- 
time of  the  parties,  and  would  undoubtedly  be  good 
after  the  death  of  either  party.14 

8  Rev.  Stats.,  c.  17,  §  6,  [1270]. 
»  Section  390,  supra. 

10  Potter  v.  Potter,  43  Or.  148,  72  Pac.  702. 

11  Becker  v.  Linton,  80  Neb.  655,  114  N.  W.  928. 

12  Leininger  Lumber  Co.  v.  Dewey,  80  Neb.  859,  126  N.  W.  87. 

13  Forwood  v.  Forwood,  86  Ky.  114,  5  S.  W.  361;  Reiger  v.  Schaible, 
81  Neb.  33,  115  N.  W.  560;  Nail  v.  Maurer,  25  Md.  532. 

14  Fox  v.  Davis,  113  Mass.  255;  Grime  v.  Borden,  166  Mass.  198. 

(715) 


§  430  PROBATE   AND   ADMINISTRATION.          [Chap.  33 

The  utmost  good  faith  is  required  of  both  parties. 
Their  relationship  is  one  of  mutual  confidence,  and  far 
different  from  those  dealing  with  each  other  at  arms' 
length.  It  is  the  duty  of  each  to  be  frank  and  unre- 
served and  to  fully  disclose  all  the  facts  and  circum- 
stances which  may  in  any  way  affect  the  agreement,15 
and  the  burden  of  proof  is  on  the  party  contesting  the 
same.18 

Form  No.  190. 
ANTENUPTIAL  CONTEACT. 

This  agreement  made  this  day  of  ,  19 — ,  by  and  be- 
tween A.  B.  and  C.  D.,  both  of  the  county  of  and  state  of 

Nebraska,  witnesseth,  that 

Whereas,  said  parties  are  about  to  be  married,  and  said  A.  B.  is 
the  owner  of  both  real  and  personal  property,  a  part  of  which  he 
wishes  to  hold  free  of  any  claim  or  right  of  said  C.  D.  therein,  and  with 
full  right  to  dispose  of  the  same  by  will,  and  to  bar  the  right  of 
inheritance  of  his  wife  therein,  and  said  C.  D.  is  also  the  owner  of 
certain  property  all  of  which  she  desires  to  hold,  retain  and  dispose 
of  in  the  same  manner  as  that  of  said  A.  B. 

It  is  hereby  expressly  covenanted  and  agreed  by  and  between  the 
parties  hereto  that  said  C.  D.,  in  consideration  of  said  marriage,  hereby 
waives,  releases  and  relinquishes  all  rights,  claims  and  demands,  either 
at  law  or  in  equity,  in  and  to  the  property  of  the  said  A.  B.  which  he 
now  owns  or  may  hereafter  become  seised  or  possessed,  save  and  except 
the  homestead  interest  and  the  statutory  allowance  for  her  support 
pending  the  administration  of  the  estate  of  said  A.  B. 

And  the  said  A.  B.,  also  in  consideration  of  said  marriage,  hereby 
waives,  releases  and  relinquishes  all  rights,  claims  and  demands,  either 
at  law  or  equity,  including  homestead  rights,  in  and  to  all  the  property 
now  owned  by  said  C.  D.  or  of  which  she  may  hereafter  become  seised 
or  possessed. 

15  Murdock  v.  Murdock,  219  111.  123,  76  N.  E.  57;  Fisher  v.  Kontz, 
110  Iowa,  498,  80  N.  W.  551;  Graham  v.  Graham,  143  N.  Y.  573,  38 
N.  E.  722. 

16  Eeiger  v.  Schaible,  81  Neb.  33,  115  N.  W.  560. 

(716) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  431 

In  witness  whereof  the  said  parties  have  hereunto  set  their  hands 

this day  of  ,  19 — . 

(Signed)     A.  B. 
C.  D. 

State  of  Nebraska, 
County, — SB. 

On  this  day  of  ,  19 — ,  before  me,  the"  undersigned,  a 

notary  public  in  and  for  said  county,  personally  came  A.  B.  and  C.  D., 
to  me  personally  known  to  be  the  persons  described  in  and  who  exe- 
cuted the  foregoing  instrument,  and  each  respectively  acknowledged 
the  same  to  be  his  and  her  free  act  and  deed,  and  each  further  acknowl- 
edged that  he  or  she  executed  said  instrument  for  the  purposes  therein 
mentioned. 

Witness   my   hand  and   official   seal  the   day  and  year  last  above 
written. 

(Seal)  (Signed)     G.  H., 

Notary  Public. 

§  431.  Election  between  will  and  distributive  share. 
The  enlarged  estate  which  the  surviving  spouse  takes 
in  the  real  estate  of  the  decedent  being  in  lieu  of  dower 
or  curtesy,  and  the  right  of  election  between  such  estate 
and  the  provisions  of  the  will  being  given  him  or  her  by 
law,  the  same  general  principles  govern  its  exercise  as 
the  right  to  dower  in  states  where  it  exists.  Neither 
husband  nor  wife  can  by  a  separate  act,  and  without 
the  consent  of  the  other,  deprive  the  survivor  of  the 
right  to  elect  whether  he  or  she  will  take  the  provi- 
sions of  the  will,  or  that  interest  in  the  estate  which  he 
or  she  would  take  had  decedent  died  intestate.18  Such 
survivor  will  be  deemed  to  have  accepted  the  terms  of 
the  will,  unless  he  or  she  files  in  the  county  court, 
within  one  year  after  the  date  of  the  letters  testa- 
mentary, a  refusal  in  writing  to  accept  the  estate  so 

18  Johnson  v.  Richardson  (Neb.),  151  X.  W.  314;  Bev.  Stats.,  c.  17, 
§  7,  [1272];  L.  O.  L.,  §§  7302,  7315. 

(717) 


§  431  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

devised  or  other  provisions  of  the  will,  which  declara- 
tion must  be  executed  and  acknowledged  the  same  as 
a  deed.19 

In  Oregon  the  survivor  will  not  be  deemed  to  have 
elected  to  take  dower  or  curtesy  unless  she  or  he  begin 
proceedings  for  the  assignment  of  the  same  within 
one  year  from  the  date  of  the  death  of  the  decedent.20 
The  right  of  election  applies  only  to  lands  in  the  state 
where  the  will  is  probated.  In  other  states  it  is  based 
on  the  laws  of  such  states.21 

Before  making  her  election,  the  widow  is  entitled 
to  a  full  opportunity  for  learning  the  amount,  value, 
condition  and  situation  of  the  estate,  and  all  matters 
pertaining  thereto.  If  made  in  ignorance  of  the 
amount  and  condition  of  the  estate,  or  through  fraud 
or  misrepresentation,  it  is  not  binding  on  her,  and 
may  be  recalled  at  any  time  before  the  final  distribu- 
tion of  the  estate.22  When  she  has  made  an  improvi- 
dent election,  without  knowledge  of  the  extent  of 
the  estate,  through  fraud  or  misrepresentation  on  the 
part  of  those  interested  in  the  estate,  courts  of 
equity  have  permitted  her  to  withdraw  her  election 
or  change  it,  even  after  the  expiration  of  the  statu- 
tory period.23  In  such  cases  she  must  account  to 
the  estate  for  all  the  money  she  has  received,  ex- 
is  Rev.  Stats.,  c.  17,  §  8,  [1272]. 

20  L.  O.  L.,  §§  7304,  7315. 

21  Rannells  v.  Rowe,  116  Fed.  425,  92  C.  C.  A.  177;  Staig  v.  Atkinson, 
144  Mass.  564,  12  N.  E.  354. 

22  Sill  v.  Sill,  31  Kan.  248,  1  Pac.  556;  Evans'  Appeal,  51  Conn.  435; 
Ludington  v.  Patton,  111  Wis.  208,  86  N.  W.  571. 

23  United  States   v.   Duncan,  4  McLean,  99,  Fed.  Cas.   No.   15,002; 
Smither's  Exr.,  9  Bush  (Ky.),  230;  Grider  v.  Eubanks,  12  Bush  (Ky.), 
510;  Ludington  v.  Patton,  111  Wis.  208,  86  N.  W.  571. 

(718) 


Chap.  33]  DIVISION  OF  THE  ESTATB.  §  432 

cept  statutory  provisions  for  her  support  pending  set- 
tlement of  the  estate,  restore  the  real  estate,  and  ac- 
count for  the  use  thereof,  and  is  entitled  to  receive 
from  the  estate  her  interest  as  of  the  date  when  she 
received  the  property  under  the  will,24  though  some  of 
the  property  may  have  passed  into  the  hands  of  the 
heirs.25 

Form  No.  191. 

ELECTION  TO  TAKE  UNDER  STATUTE. 
[Title  of  Cause  and  Court.] 

I,  C.  B.,  of  the  county  and  state  aforesaid,  widow  of  said  A.  B., 
deceased,  do  hereby  elect,  pursuant  to  the  terms  of  section  seven, 
chapter  seventeen,  of  the  Revised  Statutes  of  Nebraska,  to  reject  the 
provisions  made  for  me  by  the  will  of  said  A.  B.,  which  has  been  duly 
admitted  to  probate  in  said  court,  and  to  take  in  lieu  thereof  such 
share  of  the  real  and  personal  estate  of  said  A.  B.  as  I  would  take  by 
descent,  had  said  A.  B.  departed  this  life  intestate,  and  I  hereby  release 
and  relinquish  all  my  right,  title  and  interest  as  legatee  and  devisee 
of  said  A.  B.  under  the  terms  of  said  will. 

Dated  this day  of ,  19 — . 

(Signed)     C.  B. 

[Add  acknowledgment,  same  form  as  for  deeds.] 

§  432.    Election  on  behalf  of  survivor. 

The  right  of  election  is  uniformly  regarded  by  the 
•courts  as  a  personal  one.  It  can  only  be  exercised  by 
the  party  himself,  or  by  someone  acting  under  the 
direction  of  the  court  for  him.  It  is  not  transmissible 
t>y  descent  or  assignment,26  nor  is  the  right  to  revoke 
the  same.27 

24  Ludington  v.  Patton,  111  Wis.  208,  86  N.  W.  571. 

25  Huguenin  v.  Baseley,  14  Ves.  273;  Bridgeman  v.  Green,  Wilmot, 
Ops.  58,  65. 

26  Estate  of  Nordquist  v.  Sahiboom,  114  Minn.  329,  131  N.  W.  329; 
Welch  v.  Anderson,  28  Mo.  293;  Penhallow  v.  Kimball,  61  N.  H.  596; 
Pinkerton  v.  Sargent,  102  Mass.  56. 

27  FergoB  v.  Schaible,  91  Neb.  180,  135  N.  W.  448. 

.(719) 


§  432  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

If  insane  or  otherwise  incompetent,  the  survivor  can- 
not make  a  valid  renunciation,  nor  has  his  or  her 
guardian  such  rights  without  express  direction  from 
the  county  court.28 

It  is  the  duty  of  the  county  judge,  on  the  application 
of  the  guardian  or  guardian  ad  litem,  to  make  the  elec- 
tion, and  he  should  protect  the  interests  of  the  incom- 
petent without  regard  to  any  advantage  or  disadvan- 
tage that  may  accrue  to  the  legatees  or  devisees.29 

The  usual  practice  is  for  the  guardian  to  file  a  peti- 
tion setting  out  in  full  all  the  circumstances  and  con- 
ditions and  ask  for  directions.  However,  an  oral  ap- 
plication, made  by  a  guardian  ad  litem  and  acted  on 
by  the  court,  has  been  held  to  be  sufficient.30 

Form  No.  192. 

PETITION  BY  GUAEDIAN  OF  INCOMPETENT  WIDOW  FOR 
AUTHORITY  TO  ELECT. 

[Title  of  Cause  and  Court.] 
Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  day  of  ,   19 — ,  he  was  appointed  by  said  court 

guardian  of  C.  B.,  an  incompetent  person;  that  one  A.  B.,  late  of  said 
county,  the  husband  of  said  C.  B.,  departed  this  life  in  said  county 

on  the  day  of  ,  19 — ,  leaving  a  last  will  and  testament, 

which  was,  on  the  day  of ,  19 — ,  admitted  to  probate  in 

eaid  court;  that  said  will  contains  the  following  bequests  and  devises 
to  said  C.  B.  [copy  all  provisions  of  said  will  which  contain  any  be- 
quest or  devise  to  widow] ;  that  said  C.  B.  was,  on  the  day  of 

28  Donald  v.  Portis,  42  Ala.  29;  Heavenridge  v.  Nelson,  56  Ind.  90; 
Pinkerton  v.  Sargent,  102  Mass.  568;  Young  v.  Boardman,  97  Mo.  181,. 
10  S.  W.  48. 

29  Bonacum  v.  Manning,  85  Neb.  90,  122  N.  W.  711;  Penhallow  v. 
Kimball,  61  N.  H.  596;  Young  v.  Boardman,  97  Mo.  181,  10  S.  W.  43; 
Andrews  v.  Bassett,  92  Mich.  449,  52  N.  W.  743. 

30  Gaster  v.  Gaster's  Estate,  90  Neb.  529,  134  N.  W.  235. 

(720) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  433 

,  19 — ,  adjudged  an  insane  person  by  the  commissioners  of  in- 
sanity in  and  for  said  county,  and  is  now,  and  for  more  than  two 
years  last  past  has  been,  insane  and  incompetent  to  transact  any  busi- 
ness; that  said  C.  B.  is  possessed  in  her  own  right  of  no  property  what- 
soever, and  has  no  other  means  than  her  interest  in  the  estate  of  said 
A.  B.,  or  the  provisions  made  for  her  in  said  will;  that  said  estate 

consists  of  real  estate  of  the  value  of dollars,  unencumbered  by 

mortgage,  and  personal  property  of  the  value  of  dollars,  and 

that  the  debts  against  said  estate  will  not  exceed  the  sum  of  

dollars. 

Your  petitioner  therefore  prays  that  instructions  may  be  given  him 
by  said  court  whether  to  elect,  on  behalf  of  his  said  ward,  to  receive 
the  above  provisions  of  said  will,  or  to  have  assigned  to  her  her  stat- 
utory interest  in  said  estate,  and  the  provisions  made  for  her  by 
statute. 

Dated  this day  of  ,  19 — . 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

Form  No.  193. 

OEDEB  DIEECTING  GUAEDIAN  OF  INCOMPETENT  WIDOW  TO 
ELECT  STATUTOEY  SHAEE. 

[Title  of  Cause  and  Court.] 

Now,   on  this  day  of  ,  19 — ,  this   cause  came  on  for 

hearing  upon  the  petition,  duly  verified,  of  C.  D.,  for  instructions 
whether  to  receive  for  and  on  behalf  of  his  ward,  C.  B.,  the  provisions 
made  for  her  by  the  will  of  said  A.  B.,  or  renounce  the  same  and  be 
endowed  of  his  estate. 

Upon  consideration  whereof,  the  court  finds  that  the  provision  made 
for  said  C.  B.  by  the  will  of  said  A.  B.  will  yield  a  smaller  income  for 
said  C.  B.  than  her  statutory  interest  in  said  estate.  The  said  C.  D., 
guardian,  is  therefore  directed  and  instructed  to  elect  to  renounce  the 
provisions  of  said  will  for  and  on  behalf  of  his  said  ward. 

(Signed)     J.  K., 
County  Judge. 

§  433.    Effect  of  rejection  of  devise  or  bequest. 

The  effect  of  an  election  to  take  under  the  statute 
is  to  terminate  the  interests  given  by  the  will  to  the 

46— Pro.  Ad.  (721) 


§  433  PBOBATE   AND  ADMINISTRATION.          [Chap.  33 

survivor,  and  to  place  him  or  her,  in  so  far  as  the  prop- 
erty in  this  state  is  concerned,  in  the  same  position  as 
though  deceased  died  intestate,  giving  him  or  her  the 
share  or  interest  of  the  surviving  spouse  an  intestate 
person,  neither  more  nor  less.31  Election  to  take  under 
the  statute  does  not  revoke  the  will,  but  may  make  it  a 
difficult  matter  to  find  out  what  was  the  testator's  in- 
tention, and  as  to  the  other  beneficiaries  it  will  be 
complied  with  as  far  as  possible.32 

The  amount  necessary  to  make  up  the  statutory 
share  may  generally  be  obtained  by  adding  to  the 
property  given  by  the  will  contributions  from  the 
other  parties  in  proportion  to  their  bequests  or  devises, 
and  made  either  in  realty  or  personalty,  as  the  case 
may  be.33  If  a  life  estate  is  given  the  survivor  and 
the  remainder  to  designated  parties,  the  rejection  of 
the  will  gives  the  remaindermen  the  right  to  immediate 
enjoyment,34  unless  the  will  indicates  otherwise.35 

In  many  cases  it  is  almost  impossible  to  ascertain 
and  carry  out  the  testator's  intentions  when  the  sur- 
vivor elects  to  take  under  the  statute.  The  draftsman 
of  a  will  can  obviate  an  election  in  almost  every  case 
by  explaining  to  the  testator  the  rights  the  surviving 
spouse  has  in  an  estate. 

31  Geiger  v.  Bitzer,  80  Ohio  St.  85,  88  N.  E.  134;  Ashelford  v.  Chap- 
man, 81  Kan.  312,  105  Pac.  534;  In  re  Fogg,  105  Me.  480,  74  Atl.  1133. 

32  Pitman  v.  Pitman,  81  Kan.  643,  107  Pac.  235;  Fennell  v.  Fennell, 
80  Kan.  730,  106  Pac.  1038. 

33  Shreve  v.  Shreve,  176  Mass.  458,  57  N.  E.  686;  In  re  Klenke,  210 
Pa.  575,  60  Atl.  167. 

34  Hall  v.  Smith,  61  N.  H.  144;  Woodburn's  Estate,  151  Pa.  586,  25 
Atl.  145;  Beideman  v.  Sparks,  64  N.  J.  Eq.  374,  55  Atl.  1132. 

35  Jones  v.  Knappen,  63  Vt.  391,  22  Atl.  630. 

<722) 


Chap.  33]  DIVISION  OF  THE  ESTATB.  §  434 

§  434.    Descent  of  real  estate  to  heirs. 

The  residue  of  the  estate  remaining  after  deducting 
the  share  of  the  surviving  spouse  as  in  section  429 
described,  and  any  real  estate  or  any  right  thereto,  or 
any  interest  therein  in  fee  simple  or  for  the  life  of 
another,  not  lawfully  devised,  of  which  a  person  not 
leaving  a  husband  or  wife  surviving  shall  die  seised, 
descends,  subject  to  his  debts,  in  the  manner  following: 

First.  In  equal  shares  to  the  children  and  to  the 
lawful  issue  of  any  deceased  child,  by  right  of  repre- 
sentation. 

If  there  be  no  issue  living  at  the  date  of  his  or  her 
death,  to  his  or  her  lineal  descendants,  if  of  the  same 
degree,  equally,  otherwise  by  right  of  representation. 

Second.  If  there  be  no  issue  to  the  father  and 
mother  of  the  deceased  or  the  survivor  of  them. 

Third.  If  there  be  no  issue  or  father  or  mother,  to 
the  brothers  and  sisters  and  the  children  of  any  de- 
ceased brother  or  sister  by  right  of  representation. 

Fourth.  If  there  be  no  issue,  or  father  or  mother,  or 
brother  or  sister,  to  the  next  of  kin  in  equal  degree,  ex- 
cepting that  where  there  are  two  or  more  collateral 
kindred  in  equal  degree  but  claiming  through  different 
ancestors,  those  who  claim  through  the  nearest  an- 
cestor shall  be  preferred  to  those  claiming  through  an 
ancestor  more  remote. 

Fifth.  If  any  person  die  leaving  several  children, 
or  one  child  and  the  issue  of  one  or  more  children,  and 
any  such  surviving  child  shall  die  under  age  and  not 
having  been  married,  all  the  estate  that  came  to  the 
deceased  child  by  inheritance  from  such  deceased  par- 
ent shall  descend,  in  equal  shares,  to  the  other  chil- 

(723) 


§  434a  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

dren  of  the  same  parent  and  to  the  issue  of  any  such 
child  who  shall  have  died,  by  right  of  representation. 

Sixth.  If,  at  the  death  of  such  child,  who  shall  die 
under  age  and  not  having  been  married,  all  the  other 
children  of  said  parent  shall  also  be  dead,  and  any  of 
them  shall  have  left  issue,  the  estate  that  came  to  said 
child  by  inheritance  from  his  or  her  said  parent  shall 
descend  to  all  the  issue  of  the  other  children  of  the 
.same  parent,  and  if  all  the  said  issue  are  of  the  same 
degree  of  kindred  to  said  child,  they  shall  take  the 
estate  equally,  otherwise  they  shall  take  according  to 
the  right  of  representation. 

Seventh.  If  the  deceased  leave  no  kindred  or  hus- 
band or  wife,  his  estate  shall  escheat  to  the  state  of 
Nebraska.36 

Under  the  first  subdivision  of  the  above  statute, 
grandchildren  of  a  deceased  intestate  take  the  share 
which  their  parent  would  take  if  living.  Under  the 
third  subdivision  grandchildren  of  a  deceased  brother 
or  sister  are  not  included,  and  grandnephews  and 
grandnieces  do  not  inherit  when  there  are  brothers  or 
sisters  or  children  of  deceased  brothers  and  sisters 
surviving.37  A  grandfather  inherits  before  an  uncle.38 

§  434a.    Descent  of  real  estate  to  heirs — Concluded. 

Under  the  Oregon  statutes  the  real  estate  of  which 
an  interstate  dies  seised  descends,  subject  to  his  debts, 
as  follows: 

1.  In  equal  shares  to  his  or  her  children,  and  to  the 
issue  of  any  deceased  child  by  right  of  representation; 

8«  Rev.  Stats.,  c.  17,  §  2,  [1268]. 

37  Noteware  v.  Colton,  95  Neb.  541,  145  N.  W.  993. 

38  Smallman  v.  Powell,  18  Or.  367,  23  Pac.  249. 

(724) 


Chap.  33J  DIVISION  OF  THE  ESTATE.  §  434a 

and  if  there  be  no  child  living  at  the  time  of  his  or 
her  death,  such  property  shall  descend  to  all  his  or 
her  lineal  descendants.  If  of  the  same  degree,  they 
take  equally;  otherwise  by  right  of  representation. 

2.  If  the  intestate  shall  leave  no  lineal  descendants, 
such  real  property  shall  descend  to  his  wife,  or  if  a 
married  woman,  to  her  husband,  and  if  the  intestate 
shall  leave  no  wife  or  husband,   the  property  shall 
descend  in  equal  proportions  to  his  or  her  father  and 
mother. 

3.  If  the  intestate  leaves  no  lineal  descendants,  nor 
husband,  wife  nor  a  father,  the  property  descends  to 
his  or  her  mother,  and  if  the  mother  is  not  living,  then 
to  the  brothers  and  sisters  in  equal  shares,  and  the 
issue  of  any  deceased  brother  and  sister  by  right  of 
representation.39 

4.  If  the  intestate  shall  leave  no  lineal  descendants, 
nor  husband,  wife,  father,  mother,  brother  or  sister, 
the  property  descends  to  his  or  her  next  of  kin  in 
equal  degree,  excepting  that  when  there  are  two  or 
more  collateral  kindred  in  equal  degree  but  claiming 
through  different  ancestors,   those  claiming  through 
the  nearest  ancestor  shall  be  preferred  to  those  claim- 
ing through  a  more  remote  ancestor. 

5.  When    any    child    shall   die   under   the    age    of 
twenty-one  years  and  leave  no  husband  nor  wife  nor 
children,   any   real   estate  which   descended   to   such 
child  shall  descend  to  the  heirs  of  the  ancestor  from 
whom  such  real  property  descended  the  same  as  if 
such  child  died  before  the  death  of  such  ancestor. 

6.  If  the  intestate  shall  leave  no  lineal  descendants 
nor  kindred,  such  real  property  shall  escheat  to  the 
state  of  Oregon.40 

Subdivision  5,  which  has  been  enacted  in  substance 
in  many  states,  is,  as  in  Nebraska,  clearly  a  modifica- 
tion of  the  previous  parts  of  the  section.  Before  the 

39  Grant  v.  Paddock,  30  Or.  320,  47  Pac.   712. 

40  L.  O.  L.,  §  7348;  Gen.  Laws  1913,  c.  39. 

(725) 


§  435  PROBATE   AND  ADMINISTRATION.         [Chap.  33 

amendments  of  1905  and  1913  it  was  held  that  on  the 
death  of  a  woman  intestate  and  leaving  property 
which  passed  to  her  husband  and  minor  children,  fol- 
lowed shortly  after  by  the  death  of  one  of  the  children, 
the  inheritance  of  such  child  passed  to  the  father,  to 
the  exclusion  of  the  brothers  and  sisters.41  As  the 
act  now  stands  the  property  would  pass  to  the  children 
to  the  exclusion  of  the  parent.42 

§  435.    Descent  of  real  estate  to  heirs — Concluded. 

The  term  "next  of  kindred,"  as  used  in  the  statutes, 
is  limited  to  relations  by  blood  or  consanguinity  only, 
descendants  from  the  same  stock  or  ancestors;43  hence 
the  reason  that  the  wife  or  husband  do  not  inherit  from 
each  other  as  kin  or  descendants.44  The  degrees  of 
kindred  are  computed  according  to  the  rules  of  the 
civil  law.45  In  order  to  determine  in  what  degree  a 
person  is  related  to  the  intestate,  begin -with  the  in- 
testate and  ascend  from  him  to  a  common  ancestor,  and 
descend  from  that  ancestor  to  the  person,  counting 
each  generation  as  one  degree,  excluding  the  decedent 
and  including  the  heir. 

The  law  does  not  permit  inheritance  per  stirpes  ex- 
cept where  it  is  expressly  and  affirmatively  provided.46 
It  applies  only  from  necessity,  or  where  there  are 
lineal  heirs  of  different  degrees.47 

41  Stitt  v.  Bush,  22  Or.  239,  29  Pac.  737. 

42  See  §  435,  post. 

43  Birney  v.  Wilson,  11  Ohio  St.  426. 

44  Prather  v.  Prather,  58  Ind.  141;  Warren  v.  Englehart,  13  Neb. 
283,  13  N.  W.  401. 

45  Eev.  Stats.,  c.  17,  §28;  L.  O.  L.,  §  7353. 

46  Douglas  v.  Cameron,  47  Neb.  358,  66  N.  W.  430;  Clary  v.  Wat- 
kins,  64  Neb.  386,  87  N.  W.  1042. 

47  Knapp  v.  Windsor,  6  Cush.  (Mass.)  156. 

(726> 


Chap.  33]  DIVISION  or  THE  ESTATE.  §  435 

"When  an  intestate  leaves  neither  widow,  father, 
mother,  brother,  nor  sister,  but  nephews  and  nieces, 
and  grand  nephews  and  nieces,  the  nephews  and  nieces 
take,  to  the  exclusion  of  grand  nephews  and  nieces, 
and,  being  of  equal  degree,  they  take  per  capita™  and, 
in  all  cases  where  the  next  of  kin  are  of  the  same 
degree,  they  take  per  capita.™ 

Under  the  common  law,  a  distinction  was  made  be- 
tween estates  which  came  to  the  intestate  by  inherit- 
ance and  those  which  were  the  result  of  his  own 
efforts.  Our  statutes  contain  no  such  provisions,  ex- 
cept in  the  case  of  infants  dying  under  age,  unmarried, 
and  kindred  of  the  half  blood.  Property  which  such 
infant  inherited  from  a  parent  passes  to  his  brothers 
and  sisters  and  the  children  of  deceased  brothers  and 
sisters,  to  the  exclusion  of  the  surviving  parent.  The 
portions  of  the  statute  denning  the  parties  who  take 
the  property  which  such  minor  inherited  limit  or 
modify  the  previous  subdivisions.50 

If  such  minor  dies  intestate  leaving  no  brothers  or 
sisters,  or  issue  of  any  deceased  brothers  or  sisters, 
his  estate  inherited  from  his  father  or  mother  would 
be  distributed  and  descend  in  the  same  manner  as  that 
of  any  other  intestate  leaving  the  same  heirs.  The 
limitation  extends  to  an  estate  derived  from  parents 
only,  and  not  to  that  received  by  him  by  inheritance  or 
right  of  representation  from  a  grandparent  or  other 

«  Douglas  v.  Cameron,  47  Neb.  358,  66  N.  W.  430. 

*»  Nichols  v.  Shepard,  63  N.  H.  391;  Baker  v.  Bourne,  127  Ind.  466, 
26  N.  E.  1078;  Van  Cleve  v.  Van  Fossen,  73  Mich.  342,  41  N.  W.  258; 
Snow  v.  Snow,  111  Mass.  389. 

60  In  re  Van  Orsdol's  Estate,  94  Neb.  98,  142  N.  W.  686. 


§  436  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

ancestor.61  Such  estate  is  the  absolute  property  of  the 
infant  while  living,  and  may  be  used  for  the  payment 
of  his  debts  and  his  maintenance  and  education,  if 
necessary.52 

§  436.    Kindred  of  the  half  blood. 

"Kindred  of  the  half  blood  shall  inherit  equally  with 
those  of  the  whole  blood,  in  the  same  degree,  unless  the 
inheritance  came  to  the  intestate  by  descent,  devise  or 
gift  of  some  one  of  his  ancestors,  in  which  case  all  those 
who  are  not  of  the  blood  of  such  ancestor  shall  be  ex- 
cluded from  such  inheritance.  "52a  Therefore,  where 
the  estate  has  been  obtained  by  descent  or  devise  from  a 
common  ancestor  or  by  purchase,  brothers  and  sisters 
of  the  half  blood  inherit  from  each  other.53  The  law 
does  not  completely  bar  out  those  of  the  half  blood,  for, 
if  they  have  any  of  the  blood  of  the  ancestor,  however 
small  the  fractional  part,  they  inherit  as  the  intestate's 
next  of  kin,  equally  with  those  of  the  whole  blood.54 
The  children  of  a  deceased  brother  or  sister  of  the 
whole  blood  will  take  by  representation,  to  the  exclu- 
sion of  brothers  and  sisters  of  the  half  blood,  where  the 
estate  came  by  gift  or  inheritance  from  a  person  not 
the  ancestor  of  the  half  blood.55 

51  Goodrich  v.  Adams,  138  Mass.  552;  Sedgwick  v.  Minot,  6  Allen 

(Mass.),  171. 

52  Wiesner  v.  Zaun,  39  Wis.  188. 
52a  Rev.  Stats.,  c.  17,.§11,  [1275]. 

53  Den  d.  Pierson  v.  De  Hart,  3  N.  J.  L.  73;  Cutter  v.  Waddingham, 
22  Mo.  206. 

54  Den  d.  Delaplaine  v.  Searing,  8  N.  J.  L.  340;  King  T.  Neely,  14 
La.  Ann.  165;  Scott  v.  Terry,  37  Miss.  65. 

55  Eev.  Stats.,  c.  17,  §  11,  [1275];  L.  O.  L.,  §  7353. 

(728) 


Chap.  33]  DIVISION  OF  THE  ESTATE.         §§437,438 

The  foregoing  rules  in  regard  to  the  descent  of  realty 
among  those  of  the  half  blood  apply  to  the  distribution 
of  personalty.56 

§  437.    Descent  of  estate  of  illegitimate. 

The  estate  of  an  illegitimate  dying  intestate  passes 
to  his  issue;  if  he  leaves  no  lawful  issue,  to  his  mother, 
and  in  case  of  her  decease,  to  her  heirs  at  law.57  The 
property  which  so  passes  to  them  is  that  remaining 
after  deducting  the  share  of  the  surviving  spouse.58 
On  an  issue  of  the  legitimacy  of  a  deceased  intestate, 
the  courts  adopt  a  liberal  rule  in  admitting  testimony, 
it  coming  within  the  exception  of  the  common-law  rule 
admitting  hearsay  evidence  in  cases  involving  pedi- 
gree. Declarations  of  the  deceased,  declarations  and 
acts  of  his  mother  and  those  of  the  relatives  of  his 
alleged  father  who  were  acquainted  with  him,  are  ad- 
missible.59 

Under  the  Oregon  statute  the  estate  of  an  illegiti- 
mate dying  intestate  descends  to  the  surviving  spouse 
or  issue,  as  in  other  cases;  if  none  such  survive,  to  the 
mother.60  If  there  be  no  spouse,  issue  or  mother  sur- 
viving, his  property  escheats  to  the  state.61 

§  438.     Right  of  illegitimate  to  inherit. 

At  common  law  an  illegitimate  child  was  nullius 
filius,  and  therefore  incapable  of  inheriting  from 

M  Rev.  Stats.,  c.  17,  §  3,  [1267]. 

57  Rev.  Stats.,  c.  17,  §  10,  [1274]. 

58  Rev.  Stats.,  c.  17,  §  1,  [1264]. 

59  State  v.  McDonald.  55  Or.  435,  104  Pac.  967. 

60  L.  O.  L.,  §  7352. 

61  State  v.  McDonald,  59  Or.  525,  117  Pac.  288. 

(729) 


§  438  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

ancestors  or  collaterals.82  This  disability  has  been 
partially  removed  by  the  statute.  He  is  the  heir  of 
his  mother,  inheriting  her  estate  either  in  whole  or 
part,  the  same  as  if  he  were  born  in  lawful  wedlock, 
and  also  of  his  father,  if  the  latter  has  by  an  instru- 
ment in  writing,  signed  in  the  presence  of  a  competent 
witness,  acknowledged  himself  as  such.63 

The  writing  must  be  one  in  which  the  paternity  of 
the  child  is  directly,  unequivocally  and  unquestionably 
acknowledged.64  It  is  not  necessary  that  it  be  exe- 
cuted for  the  purpose  or  intent  of  constituting  the 
party  an  heir  nor  that  the  illegitimacy  be  mentioned  ;65 
nor  is  it  necessary  that  the  witness  actually  affixed  his 
name  to  the  writing,  where  the  witness  saw  him  write 
and  sign  it.68  Evidence  that  the  decedent  was  ad- 
judged the  father  of  an  illegitimate  child  in  a  bastardy 
proceeding  before  a  court  of  competent  jurisdiction  is 
not  sufficient  to  prove  such  illegitimate  an  heir;  there 
must  be  a  signed  and  witnessed  writing,  the  voluntary 
and  unequivocal  act  of  the  parent.67  It  does  not  make 
the  child  legitimate.68 

He  cannot  claim,  as  representing  his  father  or 
mother,  any  part  of  the  estate  of  his  or  her  kindred, 
either  lineal  or  collateral,  unless  before  his  death  his 
parents  shall  have  intermarried  and  had  other  chil- 

62  2  Bl.  Com.  249. 

63  Eev.  Stats.,  c.  17,  §  9,  [1273]. 

64  Lind  v.  Burke,  56  Neb.  785,  77  N.  W.  444;  Van  Hove  v.  Van 
Hove,  94  Neb.  575,  143  N.  W.  836. 

65  Thomas  v.  Estate  of  Thomas,  64  Neb.  581,  90  N.  W.  630;  Suc- 
cession of  Fletcher,  11  La.  Ann.  60. 

66  Blythe  v.  Ayers,  96  Cal.  532,  31  Pac.  915. 

67  Moore  v.  Flack,  77  Neb.  52,  108  N.  W.  143. 

«8  Brisbin  v.  Huntington,  128  Iowa,  166,  103  N.  W.  144. 

(730) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  438 

dren,  and  his  father  after  such  marriage  shall  have 
acknowledged  him  in  the  manner  provided  by  law,  or 
adopted  him  into  his  family,  in  which  case  such  child 
and  all  legitimate  children  shall  be  considered  as 
brothers  and  sisters,  and  the  rights  of  both  parents 
and  children  in  each  other's  estates  are  the  same  as 
though  all  the  children  are  legitimate.69 

Under  the  Oregon  statute  he  is  the  heir  of  his 
mother,  but  cannot  take  through  her  by  representa- 
tion, provided  that  when  the  parents  of  such  child 
have  formally  married,  and  lived  and  cohabited  as  hus- 
band and  wife,  he  is  not  regarded  as  an  illegitimate, 
though  the  marriage  be  void.70  A  marriage,  in  order 
to  legitimatize  previously  born  offspring,  may  be  one  in 
form  only  and  void  at  its  inception,  but  must  be  fol- 
lowed by  living  and  cohabiting  together  as  husband 
and  wife.71  There  is  no  law  providing  that  the  writ- 
ten and  witnessed  acknowledgment  by  a  father  of  his 
illegitimate  child  shall  make  him  his  heir. 

A  subsequent  marriage  of  the  parents  is  not  of  itself 
sufficient  to  make  their  child  legitimate.  There  must 
also  be  the  birth  of  other  children,  and  either  adoption 
into  the  family  or  a  written  acknowledgment  by  the 
father.72  Adoption  into  the  family  in  such  cases  does 
not  necessarily  mean  formally  adopted  by  proceedings 
in  the  county  court,  but  admitted  and  received  into  the 
family,  given  the  family  name,  and  recognized  as  a 
child.73 

69  Rev.  Stats.,  c.  17,  §  9,  [1273]. 

70  L.  O.  L.,  §§  7351,  7352. 

71  McCalla  v.  Bain,  45  Fed.  838. 

72  Trayer  v.  Setzer,  72  Neb.  845,  101  N.  W.  989. 

73  Morton  v.  Morton,  62  Neb.  420,  87  N.  W.  182. 

(731) 


§  439  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

§  439.    Inheritance  by  adopted  children. 

The  right  of  an  adopted  child  to  inherit  from  his 
adoptive  parents  is  strictly  statutory.  Unless  the 
articles  of  adoption  otherwise  provide,  the  child  has 
conferred  upon  him  by  the  decree  of  the  county  court 
all  the  rights,  privileges  and  immunities  of  children 
born  in  lawful  wedlock.74  If  there  are  conditions  or 
limitations  in  the  articles,  he  takes  accordingly,  unless 
otherwise  provided  for  by  will.  Articles  which  direct 
that  the  child  shall  receive  a  specified  sum  when  of  age 
and  also  the  rights  of  a  child  born  in  lawful  wedlock 
give  both  the  money  and  rights  in  the  estate.75 

The  adopted  child  is  generally  held  to  be  entitled  to 
the  same  property  rights  as  natural  children  only  in 
the  estate  of  his  adoptive  parents,76  but  does  not  in- 
herit from  the  natural  children  of  his  parents,77  nor 
succeed  to  the  estate  of  his  foster  parent's  ancestors.78 
If  he  dies  before  his  foster  parents  leaving  issue,  such 
issue  take  from  the  foster  parents  by  right  of  repre- 
sentation.79 

The  adoption  of  a  child  does  not  take  away  any 
rights  which  he  previously  acquired,  and  while  in- 
heriting from  his  foster  parents,  will  also  inherit  from 
his  own  kindred  and  parents.80 

74  Eev.  Stats.,  c.  18,  §  84,  [1623].     See  L.  O.  L.,  §  7089. 
73  Martin  v.  Long,  53  Neb.  694,  74  N.  W.  43. 

76  Flannagan  v.  Howard,  200  111.  296,  65  N.  E.  782;  Martin  v.  Long, 
53  Neb.  694,  74  N.  W.  43. 

77  Hockaday  v.  Lynn,  200  Mo.  456,  98  S.  W.  585;  Helms  v.  Elliott, 
89  Tenn.  446,  14  S.  W.  930. 

78  Meader  v.  Archer,  65  N.  H.  214,  23  Atl.  251;  Sunderland's  Estate, 
CO  Iowa,  732,  13  N.  W.  655. 

79  Pace  v.  Klink,  51  Ga.  220. 

80  Wagner  v.  Varner,  50  Iowa,  532. 

(732) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  440 

§  440.     Posthumous  children. 

Posthumous  children  are  considered  by  law  as  living 
at  the  death  of  the  father,  and  if  he  was  intestate,  take 
the  same  share  of  his  estate,  and  can  take  by  repre- 
sentation.81 

If  he  left  a  will  and  made  no  provision  for  such 
child,  the  child  will  take  the  same  share  as  if  he  had 
died  intestate,  unless  it  shall  be  apparent  from  the 
will  that  it  was  the  intention  of  the  testator  that  no 
provision  shall  be  made.82  The  provisions  must  be 
actual  and  definite  though  it  may  be  entirely  inade- 
quate.83 

The  burden  of  proof  appears  to  be  on  the  party 
alleging  that  the  omission  to  provide  for  such  child 
was  intentional.84 

Stillborn  children  are  presumed  by  law  never  to  have 
had  life,85  but  if  the  child  lived  even  a  few  minutes,  it 
acquired  a  right  to  take  by  descent  or  will.86 

The  county  court  having  jurisdiction  of  the  adminis- 
tration has  power  to  set  out  such  share.  Proceedings 
should  be  by  petition,  notice  to  interested  parties  and 
service  thereof  as  may  be  ordered  by  the  court.  Per- 
sonal service  should  be  had  on  the  executor  or  ad- 
ministrator and  on  the  devisees,  legatees  and  heirs  as 
far  as  possible. 

81  Rev.  Stats.,  e.  17,  §  18,  [1382]. 

82  Eev.  Stats.,  c.  17,  §  47,  [1311];  Chicago  B.  &  Q.  R.  R.  v.  Wasser- 
man,  22  Fed.  872. 

83  Stebbins  v.  Stebbins,  94  Mich.  304,  54  N.  W.  159;  In  re  Donges' 
Estate,  104  Wis.  397,  79  N.  W.  786. 

84  Knapp  v.  Minot,  164  Mass.  38,  41  N.  E.  63;  Bowen  v.  Hoxie,  137 
Mass.  527. 

85  Marsellis  v.  Thalhimer,  2  Paige  (X.  Y.),  35. 

86  Catholic  Mut.  Ben.  Assn.  v.  Firnane,  50  Mich.  82,  14  N.  W.  707. 

(733) 


§  440  PROBATE    AND  ADMINISTRATION.          [Chap.  33 

If  the  decedent  died  testate,  the  question  depends  on 
the  construction  of  the  will,  which  power  is  vested  in 
the  county  court,  subject  to  the  usual  restrictions  on 
the  rights  of  adverse  claimants.87  His  interest  could 
also  be  determined  in  an  action  for  partition.88 

Form  No.  194. 

PETITION  FOE  ORDER  SETTING  OUT  SHARE  OF  POSTHUMOUS 

CHILD. 
[Title  of  Cause  and  Court.] 

Comes  now  C.  B.,  a  minor  of  the  age  of ,  by  L.  M.,  his  guard- 
ian, under  letters  issued  out  of  and  under  the  seal  of  said  court,  and 
shows  unto  the  court  that  he  is  a  posthumous  child  of  said  A.  B.  and 

was  born  on  the  day   of  ,  19 — ;   that  said  A.  B.  died 

on  the  day  of  ,  19 — ,  leaving  a  last  will  and  testament, 

which  was  on  the  day  of  ,  19 — ,  admitted  to  probate  in 

said  court  and  letters  testamentary  thereupon  issued  to  C.  D. 

That  said  will  contains  no  provision  whatever  far  any  child  which 
might  be  born  in  lawful  wedlock  to  said  A.  B.  after  the  date  of  his 
death,  and  it  is  not  apparent  from  said  will  that  it  was  the  intention 
of  the  testator  that  no  provision  shall  be  made  for  such  child. 

That  C.  D.,  executor  as  aforesaid,  has  filed  his  final  account  as  such 

executor,  which  said  account  was  on  the  day  of ,  19 — , 

approved  by  said  court,  and,  as  appears  by  said  account  and  the 
records  and  files  in  said  matter,  said  C.  D.,  executor,  now  has  in  his 
hands,  to  be  divided  and  distributed  among  the  legatees,  distributees, 

and  heirs  at  law,  personal  property  of  the  value  of dollars,  and 

real  estate  of  the  value  of  dollars,  which  said  real  estate  is 

described  as  follows:     [Describe  real  estate.] 

Your  petitioner  therefore  prays  that  a  time  may  be  fixed  by  the 
court  for  the  hearing  of  his  said  petition,  that  notice  of  the  pendency 
thereof  be  given  to  all  persons  interested  in  the  estate,  and  that,  upon 
said  hearing  a  decree  be  entered  assigning  to  your  petitioner  the  same 

87  Youngson  v.  Bond,  69  Neb.  356,  95  N.  W.  700;  Andersen  v.  Ander- 
sen, 69  Neb.  565,  96  N.  W.  276;  Reischick  v.  Reiger,  68  Neb.  348,  94 
N.  W.  156. 

88  See  Brown  v.  Brown,  71  Neb.  200,  98  N.  W.  718. 

(734) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  440 

share  in  the  estate  of  the  said  A.  6.,  both  real  and  personal,  as  though 
he,  the  said  A.  B.,  had  died  intestate. 

Dated  this  day  of  ,  19 — . 

(Signed)     C.  B.  (a  Minor), 

By  L.  M.,  His  Guardian. 
[Add  verification,  Form  Xo.  5.] 

Form  No.  195. 

NOTICE  OF  HEARIXG  OX  PETITION  OF  POSTHUMOUS  CHILD. 
[Title  of  Cause  and  Court.] 
To  All  Persons  Interested  in  Said  Estate: 

You  are  hereby  notified  that  C.  B.,  a  minor,  by  L.  M.,  his  guardian, 
has  filed  his  petition  in  said  court  praying  for  a  decree  assigning  to 
him  a  share  in  said  estate  as  a  posthumous  child  of  said  A.  B.,  and 
that  said  petition  will  be  heard  at  the  county  court  room  in  said 
county  on  the  day  of ,  19 — ,  at  the  hour  of  9  A.  M. 

Dated  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K., 

County  Judge. 

Under  the  Oregon  statute  a  testator  who  fails  to 
name  a  child  or  the  descendants  of  a  deceased  child  in 
his  will,  though  born  after  the  date  of  the  will  or  after 
his  death,  or  make  provision  for  such  child  or  issue, 
is  deemed  intestate  in  so  far  as  such  child  or  issue  of 
deceased  children  are  concerned,  and  the  parties  to 
whom  the  estate  is  given  are  required  to  refund  their 
proportional  parts.89  The  omitted  children  take  under 
the  law  of  descent  the  same  shares  as  if  the  ancestor 
died  intestate.90  The  children  or  grandchildren  must 
be  clearly  named  and  provided  for.91  A  devise  to  a 
widow  for  life  or  to  sell  and  convey  the  said  property 
for  the  benefit  of  herself  and  her  heirs,  does  not  men- 
tion and  provide  for  the  children,  the  word  " heirs  '* 
not  being  the  equivalent  of  "children."02 

89  L.  O.  L.,  §  7325;  Worley  v.  Taylor,  21  Or.  589,  28  Pac.  903. 

90  Xorthrop  v.  Marquam,   16  Or.   186,  18  Pac.  419;  In  re  Monser's 
Estate.  60  Or.  229,  118  Pac.  1022. 

»i  Gerrish  v.  Gerrish,  8  Or.  351. 

92  Xeal  v.  Davis,  53  Or.  423,  99  Pac.  69,  100  Pac.  212. 

(735) 


§  441  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

Form  No.  1S6. 

ORDER  SETTING  OUT  SHARE  OF  POSTHUMOUS  CHILD. 
[Title  of  Cause  and  Court.] 

Now,  on   this  day   of  ,   19 — ,  this   cause  came   on   for 

hearing  upon  the  petition  of  C.  B.,  a  minor,  by  L.  M..  his  guardian, 
for  an  order  assigning  to  said  C.  B.  his  share  in  the  estate  of  said 
A.  B.  as  a  posthumous  child  of  him.  said  A.  B.,  and  the  evidence  and 
arguments  of  counsel,  and  was  submitted  to  the  court. 

Upon  consideration  whereof,  the  court  finds  that  service  of  the 
notice  of  hearing  has  been  had  on  all  parties  interested,  as  appears 
from  proof  of  service  on  file  herein;  that  the  last  will  and  testament 
of  said  A.  B.  does  not  show  an  apparent  intention  that  no  provision 
be  made  for  any  posthumous  child  born  to  said  A.  B.,  and  that  the 
said  petitioner.  C.  B.,  is  entitled  to  have  assigned  to  him  the  same 
share  in  the  estate  of  said  A.  B.  that  he,  said  C.  B.,  would  receive  had 
said  A.  B.  died  intestate;  that  the  final  account  of  C.  D.,  executor  of 

said  estate,  showing  the  sum  of dollars  in  his  hands  for  division, 

has  been  allowed,  and  that  said  C.  D.,  executor,  has  in  his  possession 
the  following  described  real  estate:  [Describe  real  estate.] 

It  is  therefore  decreed  that  said  C.  B.  is  entitled  to  [state  share  of 

child]  in  said  sum  of dollars,  being  the  sum  of dollars, 

and  that  he  be  assigned  the  same  interest  as  tenant  in  common  with 
the  devisees  of  said  estate  in  the  above-described  real  property. 

(Signed)     J.  K., 
County  Judge. 

§  441.    Share  of  child  not  provided  for  by  will. 

If  any  testator  omit  to  provide  in  his  will  for  any 
of  his  children  or  the  issue  of  any  deceased  child,  and 
it  shall  appear  that  such  omission  was  not  intentional, 
but  was  made  by  mistake  or  accident,  such  child,  or 
the  issue  of  such  child,  shall  have  the  same  share  in 
the  estate  as  though  the  deceased  had  died  intestate.93 
The  burden  of  proof  is  upon  the  claimant  to  show 
that  the  omission  was  by  mistake,  and  parol  evidence 
is  admissible.94 

»3  Rev.  Stats.,  c.  17,  §  48,  [1312]. 

94  Brown  v.  Brown,  71  Neb.  200,  98  N.  W.  718. 

(736) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  442 

The  share  of  a  posthumous  child  or  of  a  child  unin- 
tentionally omitted  from  the  will  is  taken  from  the 
residuary  estate  as  far  as  possible,  and  proportionately 
from  the  share  of  each  devisee  and  legatee.96 

Form  No.  197. 

PETITION  BY  CHILD  OMITTED  IN  THE  WILL  FOB  ASSIGN- 
MENT OF  HIS  SHABE  IN  AN  ESTATE. 

[Title  of  Cause  and  Court.] 

Comes  now  your  petitioner,  C.  B.,  and  respectfully  represents  unto 
the  court  that  he  is  a  son  of  said  A.  B.,  and  was  born  in  lawful  wed- 
lock on  the day  of ,  19 — ;  that  said  A.  B.  departed  this 

life  on  the day  of ,  19 — ,  at  the  county  aforesaid,  leaving 

a  last  will  and  testament,  which  was  on  the  day  of  , 

19 — ,  admitted  to  probate  in  said  court,  and  letters  testamentary  there- 
upon issued  to  C.  D.  as  executor  of  said  estate;  that  said  will  omits 
to  provide  for  your  petitioner  [state  facts  showing  said  omission  to 
have  been  accidental  and  unintentional].  [Balance  as  in  Form  No. 
194.] 

§  442.     Rights  of  nonresident  aliens. 

Resident  aliens  are  given  the  same  right  to  the 
descent,  enjoyment  and  possession  of  property  as  are 
citizens.96  A  resident  alien  is  an  nnnaturalized 
foreigner  living  in  this  state;  if  living  in  another  state, 
he  is  a  nonresident  alien."7 

At  common  law  an  alien  could  not  take  either  by 
descent  or  devise.  Restrictions  in  this  state  apply 
only  to  nonresident  aliens,  and  their  rights  are  the 
same  as  those  of  residents  in  property  within  the 
limits  of  an  incorporated  city  or  village,  and  that  held 

»s  Bowen  r.  Hoxie,  137  Mass.  527;  Shelby  v.  Shelby,  1  B.  Mon.  (Ky.) 
266. 

••  Const.,  art.  I,  sec.  25. 
»7  Glynn  v.  Glynn,  62  Neb.  872,  87  N.  W.  1052. 

(737) 


§  442  PROBATE    AND  ADMINISTRATION.          [Chap.  33 

for  the  purpose  of  erecting  and  maintaining  manu- 
facturing establishments.98 

In  Oregon  there  is  no  discrimination  against  aliens. 

Such  alien  does  not  lose  all  rights  in  real  estate 
devised  to  him  or  of  which  his  ancestor  died  seised  of 
an  estate  of  inheritance,  which  is  located  outside  the 
limits  of  a  city  or  incorporated  village.  He  may  be- 
come a  bona  fide  resident  of  the  state  and  thus  become 
entitled  to  its  possession  and  enjoyment.  If  he  is 
the  sole  party  in  interest,  he  may  maintain  an  ex  parte 
proceeding  in  the  district  court  of  the  county  in  which 
the  land  is  situated  to  have  the  property  sold.  The 
land  reverts  and  escheats  to  the  state.  It  is  sold  and 
the  proceeds  divided  among  those  who  would  have 
been  entitled  to  the  lands." 

Where  the  deceased  alien  acquired  title  previous  to 
March  16,  1889,  while  his  rights  were  identical  with 
those  of  a  citizen,  his  widow,  heirs  or  devisees  may 
hold  the  same  for  ten  years.  If  not  sold  within  that 
time,  or  if  they  have  not  become  residents  of  this  state, 
it  is  in  the  same  condition  as  lands  acquired  by  such 
nonresident  alien  under  a  judgment  or  order  of  sale 
in  foreclosure  proceedings,  which  lands  must  be  sold 
within  ten  years  from  the  date  possession  is  acquired. 
Whenever  lands  so  escheat  and  revert  to  the  state,  it 
is  the  duty  of  the  county  attorney  of  the  county  in 
which  the  lands  are  situated  to  commence  proceedings 
against  such  alien  for  the  purpose  of  having  a  for- 
feiture declared.  Service  of  summons  is  had  as  in 

»8  Rev.  Stats.,  c.  68,  §  87,  [6273];  Glynn  v.  Glynn,  62  Neb.  872,  87 
N.  W.  1052;  Dougherty  v.  Kubat,  67  Neb.  269,  93  N.  W.  317. 
99  Eev.  Stats.,  c.  68,  §  88,  [6274]. 

(738) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  443 

cases  of  mortgage  foreclosure.  An  appraisement  of 
the  lands  is  made  by  the  judge,  treasurer  and  clerk 
of  the  county,  and  the  balance  after  deducting  costs 
of  appraisement  is  paid  from  the  state  treasury  to  the 
persons  who  would  have  been  entitled  to  the  lands. 
The  widow,  heirs  or  devisees  of  nonresident  aliens  may 
also  maintain  suit  for  partition,  and  the  proceeds  of 
the  sale  will  be  divided  as  if  there  had  been  no 
escheat.100 

§  443.    Distribution  of  personalty. 

When  any  person  shall  die  possessed  of  any  per- 
sonal estate,  or  of  any  right  or  interest  therein,  not 
lawfully  disposed  of  by  his  last  will,  the  same  shall 
be  applied  and  distributed  as  follows: 

First.  The  surviving  husband  or  wife,  if  any,  and 
if  there  be  no  surviving  husband  or  wife,  then  the 
child  or  children,  if  any,  of  the  deceased  shall  be  al- 
lowed all  the  wearing  apparel  and  ornaments  and 
household  furniture  of  the  deceased,  and  all  the  prop- 
erty and  articles  that  was  or  were  exempt  to  the  de- 
ceased at  the  time  of  his  or  her  death,  from  levy  or 
sale  upon  execution  or  attachment,  and  other  personal 
property  to  be  selected  by  her,  him  or  them  not  ex- 
ceeding two  hundred  dollars  in  value,  and  this  allow- 
ance shall  be  made  to  such  surviving  husband  or  wife 
or  child  or  children,  if  any,  as  well  when  he,  she  or 
they  shall  receive  provision  made  in  the  will  of  the 
deceased  as  when  the  deceased  dies  intestate. 

Second.  The  allowance  for  the  support  of  the  sur- 
viving spouse  and  children.101 

100  Rev.  Stats.,  c.  68,  §§  88,  89,  [6274],  [6275]. 

101  See  §  186  et  sec-. 

'(739) 


§  443  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

Third.  The  allowance  for  the  support  of  the  chil- 
dren under  fourteen  years  of  age  when  neither  parent 
survives.102 

Fourth.  If  the  value  of  the  estate  does  not  exceed 
five  hundred  dollars,  the  court  may,  by  a  decree  for 
that  purpose,  assign  for  the  use  and  support  of  the 
surviving  husband  or  wife,  or  for  the  support  of  chil- 
dren under  fourteen  years  of  age,  the  whole  of  such 
estate  after  the  payment  of  the  funeral  charges  and 
the  costs  and  expenses  of  administration. 

Fifth.  If  the  personal  estate  amounts  to  more  than 
five  hundred  dollars,  and  more  than  the  allowances 
mentioned  in  the  preceding  subdivision  of  the  section, 
the  same  shall  be  applied  to  the  payment  of  the  debts 
of  the  deceased  and  the  charges  and  expenses  of  set- 
tling his  estate. 

Sixth.  The  residue  is  distributed  to  the  same  per- 
sons and  in  the  same  proportions  as  the  real  estate.10* 

The  household  furniture,  wearing  apparel,  articles 
or  property  exempt  to  the  decedent  from  attachment 
or  execution,  and  two  hundred  dollars  in  addition 
thereto,  pass  to  the  surviving  spouse  or  children, 
whether  decedent  was  testate  or  intestate  and  whether 
the  surviving  spouse  accepts  or  rejects  the  terms  of 
the  will.104  No  part  of  such  property  is  assets  of  the 
estate  or  liable  for  the  debts.105 

102  See  §  187,  supra. 

103  Eev.  Stats,  c.  17,  §  3,  [1267]. 

104  In  re  Leavitt's  Estate,  85  Neb.  721,  124  N.  W.  114;  O'Shea  v. 
Bruning,  85  Neb.  156,  122  N.  W.  881;  Fletcher  v.  Fletcher,  83  Neb. 
156,  119  N.  W.  232. 

105  Judson  v.  Creighton,  88  Neb.  37,  128  N.  W.  651. 

(740) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  443a 

§  443a.    Distribution  of  personalty — Concluded. 

If  the  decedent  or  surviving  spouse  was  the  owner 
of  a  homestead,  the  value  of  the  property  which  would 
pass  to  the  survivor  or  the  children  under  subdivision 
first  above  cited  is  two  hundred  dollars,  not  including 
specific  exemptions.  If  such  survivor  or  decedent  was 
not  the  owner  of  a  homestead,  then  he  or  she  or  the 
children  would  be  entitled  to  a  five  hundred  dollar  ex- 
emption in  lieu  of  homestead,  and  the  amount  which 
they  would  take  under  this  subdivision  would  be  seven 
hundred  dollars,  not  including  specific  exemptions,  and 
in  neither  case  is  such  property  subject  to  the  debts 
of  the  estate.106 

If  the  personal  estate,  not  including  that  mentioned 
in  subdivision  first,  exceeds  five  hundred  dollars,  and 
is  sufficient  to  pay  the  allowances  for  the  support  of 
the  surviving  spouse  and  children  under  fourteen,  then 
the  surplus  after  paying  the  allowances  is  applicable 
to  debts,  costs  and  expenses  of  administration,  and  to 
distribution  to  the  heirs,  but  if  such  estate  does  not 
exceed  five  hundred  dollars,  it  may  be  assigned  to  the 
survivor  or  children  under  fourteen  for  their  support, 
subject  to  funeral  charges  and  administration  ex- 
penses. 

The  exempt  property,  not  including  specific  exemp- 
tions, together  with  the  personal  property  of  the  value 
of  two  hundred  dollars,  must  be  selected  by  the  sur- 
vivor, or  a  request  or  demand  made  by  him  or  her  for 
the  same,  and  if  such  property  was  not  set  out  to  the 
survivor  during  his  or  her  lifetime,  the  right  to  it 

io«  Judson  v.  Creighton,  88  Neb.  37,  128  N.  W.  651. 

(741) 


§  443a  PEOBATE   AND  ADMINISTKATION.          [Chap.  33 

does  not  pass  to  the  estate  of  such  survivor,  it  being 
considered  in  the  nature  of  an  allowance  for  support.107 

Under  the  Oregon  statute,  the  personal  property  of 
a  deceased  intestate  is  applied  and  distributed  as 
follows: 

1.  If  the  intestate  leaves  a  widow,  she  shall  be  al- 
lowed all  articles  of  his  apparel  and  ornament,  accord- 
ing to  the  degree  and  estate  of  the  intestate,  and  such 
property  and  provision  for  the  use  and  support  of  her- 
self and  minor  children  as  have  been  granted  her  by 
the  court,108  and  this  allowance  shall  be  made  as  well 
when  she  waiv.es  the  provisions  made  for  her  in  the 
will  as  when  he  dies  intestate. 

2.  The  remaining  personal  property  is  applicable  to 
the  payment  of  the  debts  and  expenses  of  administra- 
tion. 

3.  The  residue,  if  any,  is  distributed  among  the  per- 
sons entitled   to   the   real   property   of  the   intestate 
except, 

4.  If  the  intestate  leave  a  husband,  or  widow  and 
issue,  such  husband  or  widow  shall  be  entitled  to  one- 
half  of  such  personalty;  but  if  no  issue  survive,  the 
husband  or  widow  shall  be  entitled  to  the  whole  of  the 
residue. 

5.  If  there  be  no  husband,  widow  or  kindred,  the 
whole  of  such  residue  shall  escheat  to  the  state  of 
Oregon.109 

Subdivision  1  gives  the  widow,  for  herself  and  the 
minor  children,  the  property  which  was  exempt  from 
execution  during  the  lifetime  of  the  husband,  and 
makes  all  the  other  personalty  liable  for  the  debts  and 
charges  of  administration. 

107  Section  186,  supra. 

108  Section  186,  supra 

108  L.  O.  L.,  §  7349;  Kaser  v.  Kaser  (Or.),  137  Pac.  189. 

(742) 


Chap.  33]  DIVISION  OF  THE  ESTATE.          §§444,445 

§  444.     Exceptions  to  right  to  inherit. 

A  person  convicted  of  murder,  or  of  unlawfully  con- 
spiring to  kill  another,  cannot  inherit  from  his  victim, 
but  there  are  no  other  exceptions.110 

In  Oregon  the  right  of  a  murderer  to  inherit  from 
his  victim  is  governed  by  the  common  law,  and  the 
weight  of  authority  is  that  under  a  plain  and  un- 
ambiguous statute,  it  is  immaterial  how  the  death  of 
the  ancestor  occurred;  the  court  cannot  change  the 
order  of  descent.111 

The  interest  which  a  party  has  in  public  lands  under 
a  federal  statute  is  not  an  estate  of  inheritance.  The 
rights  of  the  decedent  therein  pass  to  the  surviving 
spouse  or  heirs  by  appointment  under  the  federal  stat- 
utes.112 Lands  granted  or  allotted  to  an  Indian  by 
act  of  Congress,  there  being  no  federal  statutes  of 
descent,  on  his  death  intestate  pass  to  the  surviving 
spouse  or  heirs  under  the  laws  of  the  state  where  they 
are  situated.113 

§  445.     Escheats. 

When  a  person  dies  intestate  without  heirs  or  spouse 
surviving,  or  when  the  heir  or  spouse  is  incapable  of 
inheriting  on  account  of  having  been  convicted  of 
crime,  the  entire  estate  escheats  to  the  state.114 

no  Rev.  Stats.,  c.  17,    §  19,  [1283], 

111  Shallenberger  v.  Ransom,  41  Xeb.  631,  59  N.  W.  935;  Owens  v. 
Owens,  100  N.  C.  240,  6  S.  E.  794. 

112  Walker   v.   Ehresman,    79    Xeb.    775,    113   N.   W.   218;   Haun   v. 
Martin,  48  Or.  204,  86  Pac.  371;  Braun  v.  Matheissen,  139  Iowa,  409, 
116  N.  W.  789. 

H3  Porter  v.  Parker,  68  Neb.  338,  94  N.  W.  123;  Beam  v.  United 
States,  162  Fed.  260;  Non-She-Po  v.  Wa-Win-Ta,  37  Or.  213,  62  Pac.  15. 
iw  Bev.  Stats.,  c.  17, 1 19,  [1283]. 

X743), 


§  445  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

Property  escheats  in  Oregon  solely  on  failure  of 
heirs  or  no  spouse  surviving.115  The  word  "widow" 
does  not  appear  in  the  above  section,  but  as  there  must 
be  a  failure  of  the  parties  mentioned  in  section  7348, 
L.  O.  L.,  the  widow  is  clearly  an  heir,  and  takes  a  fee 
as  such  and  not  by  virtue  of  the  marital  relation,  as  in 
Nebraska. 

The  appointment  of  an  administrator  in  such  estates 
is  proper,  and  is  necessary  in  order  to  provide  for  the 
payment  of  the  debts  of  the  deceased.116  The  title  to 
the  property  and  the  right  to  its  possession,  eo  instanti, 
vest  absolutely  and  wholly  in  the  state.  No  inquest  or 
proceedings  as  at  common  law  are  necessary.  The 
land  becomes  an  immediate  part  of  the  school  fund 
and  is  disposed  of  as  other  school  lands.117 

Under  Oregon  practice,  an  action  at  law  must  be 
brought  by  the  district  attorney,  under  the  direction  of 
the  governor,  on  behalf  of  the  state,  or  whatever  action 
is  necessary  for  the  protection  of  its  rights.118  The 
action  is  commenced  by  the  filing  of  an  information  in 
the  circuit  court  of  the  county  in  which  such  estate 
or  any  part  thereof  is  situated,  and  the  issue  of  a  sum- 
mons and  service  of  the  same  by  publication  thereof 
in  some  newspaper  for  six  weeks.119  The  filing  of  the 
information  does  not  oust  the  administrator  or  county 
court  of  jurisdiction  over  the  allowance  and  payment 
of  claims,  or  proceedings  for  sales  of  real  estate  for 
payment  of  debts.120  As  far  as  the  personalty  is  con- 
cerned, the  circuit  court  has  no  jurisdiction  over  it 

115  L.  O.  L.,  §  7363;  59  Or.  525,  117  Pac.  283. 

us  State  v.  Seeder,  5  Neb.  205;  State  v.  O'Day,  41  Or.  495,  69  Pac. 
542;  Oregon  v.  Simmons,  46  Or.  159,  79  Pac.  498;  State  v.  McDonald, 
55  Or.  419,  104  Pac.  967. 

H7  State  v.  Eeeder,  5  Neb.  203. 

"8  L.  O.  L.,  §§  7364,  7366. 

ii»  L.  O.  L.,  §  7366. 

120  L.  O.  L.,  §§7367,  7371;  State  T.  O'Day,  41  Or.  495,  69  Pac.  542; 
State  v.  McDonald,  55  Or.  419,  104  Pac.  967. 

(744), 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  446 

until  the  county  court  has  found  that  there  is  no  law- 
ful claimant  to  it.  The  court  acquires  a  jurisdiction 
over  the  real  estate,  and  may  pass  on  the  devolution  of 
the  title  to  it,  its  jurisdiction  in  that  respect  being 
independent  of  the  county  court.121 

Land  which  escheats  to  the  state  is  sold  by  the 
sheriff  of  the  county  in  the  same  manner  as  sales  of 
real  estate  on  execution,  the  sale  confirmed  and  the 
proceeds,  after  paying  the  costs,  etc.,  paid  into  the 
state  treasury.122  Unpaid  claims  against  the  estate 
arid  the  costs  and  expenses  of  administration  are  paid 
by  the  state  treasurer  on  warrants  issued  on  the  cer- 
tificate of  the  county  judge  from  the  proceeds  of  the 
sale  of  the  assets  of  the  particular  estate.123 

Any  person  not  a  party  or  privy  to  the  escheat  pro- 
ceeding may  at  any  time  within  ten  years  file  a  peti- 
tion in  the  circuit  court  of  the  county  to  establish  his 
claim  to  the  property,  and  if  he  recovers,  is  entitled 
to  the  same,  less  the  costs  and  charges  in  connection 
therewith  and  the  costs  of  administration,  but  with- 
out interest.124 

§  446.    Personalty  distributed  as  realty. 

The  surplus,  if  any,  remaining  after  payment  of 
debts,  etc.,  from  the  proceeds  of  the  sale  of  real  estate, 
is  treated  as  real  estate  in  the  order  of  distribution, 
and  divided  in  the  same  proportions  and  among  the 
same  persons  who  inherited  the  land.125  The  common- 
law  rule  is  the  same,126  and  the  same  is  true  of  the 

121  State  v.  McDonald,  55  Or.  419,  104  Pac.  967. 

122  L.  O.  L.,  §  7370. 

123  L.  O.  L.,  §  7375. 

124  L.  O.  L.,  §  7374;  Young  v.  State,  36  Or.  424,  59  Pac.  812    36  Or. 
427,  60  Pac.  711. 

125  Rev.  Stats.,  c.  17,5219,  [1483]. 

1^6  Pence's  Appeal,  11  Ohio  St.  290;  Garner  v,  Wood,  71  Md.  37,  17 
Atl.  1031. 

(745X 


§  447  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

sale  of  the  lands  of  an  infant  which  pass  to  his 
brothers  and  sisters  and  the  issue  of  the  same  by 
representation.127 

§  447.    Decree  of  distribution. 

Heirs  and  legatees  under  our  statutes  and  procedure, 
as  at  common  law,  trace  their  title  to  the  personal 
property  which  they  receive  from  the  estate  of  their 
decedents  through  the  executor  or  administrator.12* 
After  the  payment  of  the  debts,  funeral  expenses,  costs 
and  expenses  of  administration,  and  the  allowances 
for  the  support  and  maintenance  of  the  widow  and 
minor  children,  a  decree  may  be  made  assigning  the 
residue  to  the  persons  designated  by  law.129 

Such  decree  is  necessary  in  both  testate  and  in- 
testate estates,  as  neither  an  executor  nor  adminis- 
trator will  be  protected  in  the  payment  of  legacies  or 
distributive  shares  until  an  order  of  the  court  has 
been  made  and  entered,  giving  the  name  of  the  party, 
the  amount  of  the  legacy  or  distributive  share,  or  a 
description  of  the  legacy,  if  a  specific  one.130 

A  distribution  may  be  made  as  far  as  practical  after 
the  debts,  charges  and  expenses  are  paid,  when  the 
estate  is  not  ready  for  final  settlement  on  account  of 
pending  litigation,131  or  on  account  of  a  trust  relation 
being  created  by  the  will  and  the  office  of  executor 
made  a  continuing  one.182 

127  In  re  Price,  67  N.  Y.  231,  47  Hun  (N.  Y.),  109. 

128  Clark  v.  Bundy,  29  Or.  193,  44  Pac.  282.     Section  193,  supra. 

129  Eev.  Stats.,  c.  17,  §§229,  230,  [1493],  [1494]. 

130  Fauber  v.  Keim,  88  Neb.  379,  129  N.  W.  538;  Boales  v.  Ferguson, 
55  Neb.  565,  76  N.  W.  18. 

131  Merrick  v.  Kennedy,  46  Neb.  264,  64  N.  W.  989. 

132  Eev.  Stats.,  c.  17,  §  86,  [1350]. 

(746} 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  448 

The  county  court  has  original  exclusive  jurisdiction 
of  the  distribution  of  the  personal  assets  of  an  estate.133 

§  448.    Petition  for  decree. 

Application  for  final  decree  of  distribution  may  be 
made  by  an  executor  or  administrator,  or  any  person 
interested  in  the  estate.134  A  separate  petition  may  be 
filed  for  that  purpose  and  notice  given  the  same  as  on 
hearing  on  the  final  account.  It  may  be  filed  with  such 
account,  and  the  notice  of  hearing  should  notify  the 
parties  that  a  hearing  will  be  had  on  the  application 
for  distribution. 

Form  No.  198. 
PETITION  FOR  DISTRIBUTION  OF  RESIDUE   OF  ESTATE. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the day  of ,  19 — ,  letters  of  administration  upon  said 

estate  issued  to  him  out  of  and  under  the  seal  of  said  court;  that  all 
the  proceedings  required  by  law  have  been  had  for  the  proper  filing, 
examination,  and  allowance  of  claims  against  said  estate,  and  the 
same  have  been  allowed  and  fully  paid;  that  the  funeral  charges, 
expenses  of  administration,  allowances  for  the  support  of  the  widow 
and  family  of  the  deceased  pending  administration,  allowances  for  the 
support  of  the  children  of  said  deceased  under  fourteen  years  of  age, 
and  the  amount  allowed  to  the  widow  have  been  paid  in  full. 

That  on  the  day  of  ,  19 — ,  he  filed  his  final  account, 

which  on  the  day  of ,  19 — ,  after  due  notice,  was  exam- 
ined and  allowed;  that  it  appears  from  said  account  that  there  remains 

in  the  hands  of  said  administrator,  your  petitioner,  a  residue  of 

dollars,  and  that  the  following  named  persons  are  entitled  to  share 
in  such  residue:  [Give  names,  ages,  and  residences  of  heirs  and 
legatees.] 

133  In  re  Creighton's  Estate,  12  Neb.  28t),  11  N.  W.  313;   Manning 
v.  Bonacum,  83  Neb.  417,  119  N.  W.  672. 

134  Rev.  Stats.,  c.  17,  §232,  [1496];  Lydick  v.  Chancy,  64  Neb.  288, 
89  N.  W.  801. 

(747) 


§  449  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

Your  petitioner  therefore  prays  that  a  day  may  be  fixed  for  the 
hearing  of  the  petition,  and  due  notice  thereof  given  all  persons  inter- 
ested in  the  estate,  and  that  such  residue  may  be  assigned  and  dis- 
tributed in  the  proportion  required  by  law,  and  for  such  other  relief 
as  may  be  just  and  equitable. 

(Signed)     C.  D. 

[Add  verification,  Form  No.  5.] 

§  449.    Hearing  on  application  for  distribution. 

In  order  to  establish  his  right  to  a  share  in  the  dis- 
tribution of  the  estate  the  heir  must  prove  his  rela- 
tionship to  the  decedent.135  He  must  prove  his  descent 
either  from  deceased  or  a  common  ancestor.136 

If  the  legitimacy  of  himself  or  of  an  ancestor 
through  whom  he  claims  is  raised,  marriage  must  be 
proved,137  but  proof  of  facts  from  which  a  legal  mar- 
riage may  be  inferred  is  sufficient.138  He  must  also 
bring  himself  within  the  provisions  of  the  law  of  dis- 
tribution under  which  he  claims  a  share  in  the  estate, 
and  prove  the  exhausting  of  all  lines  of  descent  which 
would  have  a  right  to  claim  before  him.139 

The  hearing  is  a  proceeding  in  rem.  The  right  to 
open  and  close  is  left  to  the  discretion  of  the  court, 
inasmuch  as  each  claimant  must  recover  on  his  own 

135  Jackson  d.  Lawrence  v.  Hilton,  16  Johns.   (N.  Y.)   96;   Birney 
v.  Ilann,  3  A.  K.  Marsh.  (Ky.)  322. 

136  Speese  v.  Shore's  Estate,  81  Neb.  593,  116  N.  W.  439. 

137  Sorenson  v.   Sorenson,   68   Neb.   483,  94   N.   W.   540;   Morrill   v. 
Otis,  12  N.  H.  466. 

138  Pratt  v.  Pierce,  36  Me.  448;  Kaise  v.  Lawson,  38  Tex.  160. 

139  Sorenson  v.  Sorenson,  68  Neb.  583,  94  N.  W.  540;  Stinchfield  v. 
Emerson,   52   Me.   465;    Emerson   v.  White,   29  N.  H.  482;    Bates    v. 
Shrader,  13  Johns.  (N.  Y.)  261. 

(748) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  449 

merits,  and  no  decree  can  be  entered  without  showing 
the  rights  of  the  distributees.140 

The  administrator  is  not  regarded  as  an  adverse 
party,  consequently  the  claimant  may  testify  to  trans- 
actions with  the  deceased.141 

In  determining  the  amounts  due  distributees,  it  is 
the  duty  of  the  court  to  consider  advancements  made 
by  the  ancestor  to  the  distributee  and  deduct  them 
from  his  share.142 

The  indebtedness  of  an  heir  to  an  estate  must  be 
deducted  from  his  distributive  share  of  the  per- 
sonalty.143 It  differs  from  an  advancement,  as  a  per- 
sonal representative  is  not  obliged  to  collect  an 
advancement  even  though  the  estate  be  insolvent,  but 
before  he  is  entitled  to  have  his  distributive  share  in 
the  estate,  his  debt  to  the  estate  must  be  settled.144 
If  it  has  not  been  already  determined,  the  court  has 
power  on  the  hearing  to  fix  the  amount  of  such  in- 
debtedness to  the  estate.145  The  amount  of  his  in- 
debtedness in  excess  of  his  share  in  the  personal  prop- 
erty is  a  lien  on  his  share  in  the  real  estate,  which 

140  Sorenson  v.  Sorenson,  68   Neb.  483,  100  N.  W.  930,  overruling 
same  case  in  94  N.  W.  540,  on  this  point. 

141  Sorenson  v.  Sorenson,  68  Neb.  483,  100  N.  W.  930,  103  N.  W.  455. 

142  McClave  v.  McClave,  60  Neb.  464,  76  N.  W.  18. 

143  Marvin  v.  Bowlby,  142  Mich.  245,  105  N.  W.  751. 

144  Oxsheer   v.   Nave,  90   Tex.   568,  40  S.  W.   7;   In  re  Dickinson's 
Estate,  148  Pa.  142,  23  Atl.  1053;  Ayers  v.  King,  168  Mo.  244,  67  S.  W. 
558. 

145  Holden  v.  Spier,  65  Kan.  412,  70  Pac.  348;  Head  v.  Spier,  66  Kan. 
386,  71  Pac.  836;  Martin  v.  Martin,  170  111.  18,  48  N.  E.  694;  Stenson 
v.  Halverson   (N.  D.),  147  N.  W.  800. 

(749) 


§§450,  450a     PKOB ATE  AND  ADMINISTRATION.      [Chap.  33 

lien  is  superior  to  that  of  any  execution  or  judgment 
rendered  against  the  heir  or  devisee.146 

§  450.     Requirements  of  the  decree. 

The  decree  of  distribution  must  name  the  persons 
and  the  proportions  or  parts  to  which  each  shall  be 
entitled,  and  such  persons  shall  have  the  right  to 
demand  and  recover  from  the  executor  or  adminis- 
trator, or  any  person  having  the  same,  their  respective 
shares.147  Unless  it  give  both  the  names  of  the  dis- 
tributees and  the  amounts  to  which  they  are  entitled, 
the  administrator  has  no  authority  to  make  payments 
thereon.148  It  should  describe  the  real  estate,  give  the 
names  of  the  parties  to  whom  it  descends,  and  the 
interests  which  each  holds  as  tenant  in  common. 

Where  there  are  personal  assets  undisposed  of,  such 
as  cattle  or  livestock,  they  should  be  assigned  to  the 
distributees  in  common,  and  decree  stating  the  pro- 
portion to  which  they  are  entitled  the  same  as  the  real 
estate. 

It  should  direct  the  personal  representative  to  pay 
to  each  distributee  his  share. 

§  450a.    Special  proceedings  for  determining  heirship. 

A  special  proceeding  for  determining  who  are  the 
heirs  and  distributees  is  provided  by  the  Oregon  stat- 
utes, in  cases  where  the  county  court  is  of  the  opinion 
that  a  reasonable  doubt  exists,  on  the  showing  sub- 
mitted, as  to  who  are  the  heirs  or  distributees  in  whole 
or  in  part  of  the  estate,  or  where  any  person  claiming 

146  Boyer  v.  Robinson,  26  Wash.  117,  66  Pac.  119;  Keever  v.  Hunter, 
66  Ohio  St.  616,  57  N.  E.  454;  Gosnell  v.  Flack,  76  Md.  423,  25  Atl. 
411;  Stenson  v.  Halverson  (N.  D.),  147  N.  W.  800. 

147  Rev.  Stats.,  c.  17,  §  231,  [1495]. 

148  B&ales  v.  Ferguson,  55  Neb.  565,  76  N.  W.  18. 

(750) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  450b 

to  be  an  heir  or  distributee  shall  request  such  action. 
Any  claimant,  or  any  number  of  persons  claiming  to 
be  heirs  or  distributees  of  the  whole  or  a  part  of  the 
estate,  may  file  a  verified  petition  in  the  county  court 
for  such  purpose  at  any  time  after  six  months  from 
the  grant  of  letters  testamentary  or  of  administration. 
Such  petition  must  set  forth  sufficient  facts  to  show 
prima  facie  that  each  plaintiff  is  entitled  to  be  declared 
an  heir  or  distributee  of  a  share  in  the  estate  and  the 
proportionate  share  to  which  he  is  entitled.  All  per- 
sons not  joined  as  plaintiffs  who  appear  from  the 
facts  set  out  in  the  petition  to  have  or  claim  rights  as 
heirs  or  distributees,  or  who  have  filed  in  the  matter 
of  the  estate  written  claims  to  be  heirs  or  distributees, 
stating  therein  their  names,  ages,  residences,  and 
places  of  birth  and  relationship  to  the  deceased,  and 
all  other  persons  known  to  the  plaintiffs,  or  any  of 
them,  to  have  or  claim  rights  as  heirs  or  distributees, 
and  all  persons  unnamed  and  unknown  having  or 
claiming  to  have  any  such  interest,  shall  be  made  de- 
fendants. The  name,  age,  residence,  and  relationship 
to  deceased  of  all  defendants  so  far  as  the  same  is 
known  by  plaintiffs  or  can  be  ascertained  by  reason- 
able diligence  shall  also  be  set  out.  If  a  minor  is  de- 
fendant, his  guardian,  if  he  have  one  in  this  state,  must 
be  joined  with  him. 

It  is  the  duty  of  the  court  before  setting  the  petition 
down  for  a  hearing  to  examine  the  same,  and  he  may 
order  that  it  be  made  more  definite  or  certain  or  that 
other  parties  be  joined  as  defendants.149 

§  450b.     Citation  and  service. 

On  filing  the  petition  the  court  makes  an  order  for 
a  hearing,  which  must  be  on  a  day  certain,  not  less 
than  ninety  days  nor  more  than  six  months  from  the 
date  of  the  order,  and  directs  the  issue  of  a  citation 

1«  Laws  1913,  p.  646. 

(751) 


§  450C  PROBATE    AND   ADMINISTRATION.          [Chap.  33 

to  the  defendants  to  appear  and  show  cause  why  the 
facts  should  not  be  found,  and  the  rights  of  heirship 
and  distribution  to  said  estate  be  decreed  as  set  forth 
and  prayed  for  in  the  petition  of  the  plaintiffs  on  file 
therein,  and  to  all  persons  named  or  unnamed  having 
or  claiming  an  interest  to  appear  and  file  answers  set- 
ting out  their  rights  in  the  estate.  The  allegations  of 
the  petition  and  the  facts  as  to  the  relief  prayed  need 
not  be  set  out  except  by  reference.150 

Personal  service  of  the  citation  must  be  had  on  all 
resident  defendants,  together  with  a  copy  of  the  peti- 
tion, at  least  twenty  days  before  the  date  of  hearing. 
Service  on  nonresidents  and  unknown  and  unnamed 
persons  is  had  by  publication  in  some  newspaper  of 
the  county  not  less  than  once  a  week  for  six  successive 
weeks,  and  a  copy  thereof,  together  with  a  copy  of 
the  petition,  mailed  to  those  whose  place  of  residence 
is  known.151 

§  450c.    Hearing  on  petition. 

The  county  court  acquires  jurisdiction  by  the  ser- 
vice of  the  citation  and  copy  of  the  petition  as  above 
described.  If  any  defendant  is  a  minor  with  no 
guardian  in  the  state,  a  guardian  ad  litem  must  be 
appointed.  Any  person  may  appear  on  or  before  the 
time  fixed  for  the  hearing,  file  an  answer,  putting  in 
issue  any  of  the  allegations  of  the  petition  and  setting 
out  the  facts  of  his  heirship  or  interest  in  the  estate. 
A  copy  must  be  served  on  the  plaintiff  or  his  attorney, 
who  may  reply  thereto.  The  case  is  heard  by  the 
court  on  the  issues  of  law  and  fact  made  by  the  plead- 
ings as  a  civifl  action.  The  court  shall  not  decree  any 
person  to  be  an  heir  or  distributee  of  an  estate  unless 

150  Laws  1913,  p.  648. 

151  Lawa  1913,  p.  648. 

(752) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  450d 

satisfied  from  the  proof  submitted,  in  which  connec- 
tion the  verified  petition  and  any  affidavits,  deposi- 
tions, oral  testimony  and  transcripts  of  church  or 
official  records,  or  other  evidence  subr-itted,  may  be 
considered,  that  such  person  bears  the  relationship  to 
the  deceased  which  he  claims  to  bear.  If  the  court 
has  reason  to  believe  that  the  person  died  without 
heirs,  the  proceedings  shall  be  stayed  for  sixty  days 
and  immediate  notice  given  to  the  governor.152 

§  450d.    Decree  determining  heirs. 

Under  these  proceedings  the  court  shall  not  refuse 
to  find  who  are  the  heirs  or  distributees  entitled  to  any 
estate  being  administered  therein  because  of  the  sup- 
posed or  possible  existence  of  an  unknown  or  missing 
heir  or  distributee  who  has  failed  to  appear  at  the 
hearing,  unless  it  shall  affirmatively  appear  that  such 
heir  or  distributee  has  been  seen  or  heard  from  within 
a  period  extending  back  not  more  than  seven  years 
prior  to  the  death  of  the  person  whose  estate  is  under 
administration;  nor  shall  it  be  presumed  without 
affirmative  proof  thereof  that  any  such  missing  or  un- 
known heir  or  distributee  left  issue ;  but  the  court  shall 
in  such  case  presume  and  adjudge  that  such  heir  or 
distributee  has  died  without  issue  prior  to  the  death 
of  the  decedent,  and  shall  ascertain  the  heirs  and  or- 
der distribution  accordingly.153 

The  decree  of  the  court  determining  who  are  the 
heirs  or  distributees  and  designating  their  share  or 
interests  fully  protects  the  executor  or  administrator, 
and  is  final  and  conclusive.  It  may  be  taken  to  the 
circuit  court  by  appeal  in  the  same  manner  as  other 
civil  cases.  Any  defendant  or  claimant,  known  or  un- 

152  Laws  1913,  p.  649. 

153  Laws  1913,  p.  649. 

48-Pro.Ad.  (753) 


§  450d  PEOBATE   AND  ADMINISTRATION.          [Chap.  33 

known,  against  whom  service  has  been  had  by  publica- 
tion, and  who  shall  not  have  had  actual  knowledge  of 
the  pendency  of  such  proceedings  prior  to  the  entry  of 
a  decree  therein,  or  his  representatives,  may,  upon 
good  cause  shown,  and  upon  such  terms  as  may  be 
proper,  be  allowed  to  answer  and  set  up  his  rights,  and 
defend  after  the  decree  and  within  three  years  from 
the  entry  thereof.  If  he  proves  his  case,  he  is  entitled 
to  his  share  in  the  estate,  and  may  have  judgment  and 
execution  against  each  of  the  distributees  for  such 
part  as  he  should  refund.  Notice  of  application  to  re- 
open the  decree  must  be  given  by  personal  service 
upon  the  distributees  within  the  state,  otherwise  by 
such  citation  as  the  court  may  direct. 

All  persons  who  appeared  in  the  original  proceed- 
ings, or  who  have  been  adjudged  heirs  or  distributees, 
or  accepted  any  distributive  share,  are  deemed  before 
the  court,  and  such  court  has  jurisdiction  over  them, 
for  the  purpose  of  proceedings  to  reopen  the  decree, 
for  three  years.154 

Form  No.  199. 
DECEEE  OF  DISTEIBUTION. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  -,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  of  C.  D.,  administrator,  for  distribution 
of  the  residue  of  said  estate  now  in  his  possession,  the  answer  of 
G.  H.,  and  the  evidence,  and  was  submitted  to  the  court.  On  consid- 
eration whereof,  the  court  finds  that  all  debts,  claims,  and  demands 
against  said  estate,  the  allowances  for  the  support  of  the  widow  and 
minor  children,  and  the  amount  allowed  the  widow  have  been  paid 
in  full,  and  that  there  remains  a  residue  in  the  hands  of  the  admin- 
istrator in  the  sum  of  dollars  [together  with  forty  head  of 

milch  cows,  three  hundred  head  of  steers  on  the  range,  and  ten  head 
of  horses] ;  that  C.  B.  is  the  widow  of  said  A.  B.,  and  C.  D.,  E.  F.,  and 
G.  H.  are  sons  of  said  A.  B.,  and  the  only  persons  entitled  to  share 
in  said  residue,  and  that  the  sum  of  dollars  has  been  paid  to 

154  Laws  1913,  p.  650. 
(754) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  451 

C.  D.  as  an  advancement;  that,  including  said  sum  of  dollars, 

.there  remains  for  distribution  the  sum  of  dollars;  that  C.  B. 

is  entitled  to  one-sixteenth  of  said  sum  of dollars,  C.  D.  five- 
sixteenths,  E.  F.  five-sixteenths,  and  G.  H.  five-sixteenths;  that  the 
livestock  above  described  be  assigned  to  said  C.  B.,  C.  D.,  E.  F.,  and 
G.  H.  in  the  same  proportions,  to  be  held  by  them  in  common. 

It  is  therefore  ordered  and  decreed  that  said  residue  be  divided  as 

follows:    To  C.  B.,  the  sum  of  dollars;  to  said  C.  D.,  the  sum 

of  dollars;  to  E.  F.,  the  sum  of  dollars;  and  to  G.  H., 

the  sum  of  dollars. 

It  further  appearing  that  said  A.  B.  died  seised  of  the  following 
described  real  estate  [describe  real  estate],  and  that  said  C.  D.,  E.  F., 
and  G.  H.  are  the  only  heirs  of  said  A.  B.,  it  is  therefore  ordered  that 
said  lands  be  assigned  to  them  in  common. 

(Signed)     J.  K., 
County  Judge. 

§  451.    Effect  of  decree  of  distribution. 

A  decree  of  distribution  is  based  on  what  the  execu- 
tor or  administrator  had  or  which  the  court  finds  such 
representative  ought  to  have  had  in  his  hands  for  the 
legatees  or  distributees.  It  is  a  judgment  operating  as 
a  judgment  de  bonis  propriis  at  common  law.  The  lia- 
bility may  be  enforced  by  execution  and  on  return 
null  a  bona  by  action  against  the  bondsmen.155  Lega- 
cies and  distributive  shares  draw  interest  from  their 
date.156 

It  is  final  and  subject  to  appeal.  The  county  court 
has  original  jurisdiction  to  set  it  aside  not  only  for 
the  causes  and  in  the  manner  prescribed  by  the  code,157 
but  after  the  expiration  of  the  time  for  such  proceed- 
ings, for  fraud,  mistake  or  misrepresentation.158 

155  Lydick  v.  Chancy,  64  Neb.  288,  89  N.  W.  801. 

156  Rev.  Stats.,  c.  32,53,  [1267];  Smullin  v.  Wharton,  83  Neb.  328, 
119  N.  W.  773,  121  N.  W.  441. 

i"  Civ.  Code,  §§  648.  656. 

158  Williams  v.  Miles,  63  Neb.  851,  89  N.  W.  459;  Weeka  v.  Wort- 
man,  77  Neb.  407,  109  N.  W.  503. 

.(755) 


§  451  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

Under  the  Oregon  practice,  the  order  directing  a 
distribution  and  settling  the  final  account  is  a  decree 
and  not  a  judgment,159  and  is  conclusive  not  only  on 
the  executor  or  administrator  but  on  the  sureties  on 
his  bond.160  The  most  effective  remedy  for  attacking 
the  order  is  by  an  action  in  equity  in  the  circuit  court 
to  set  it  aside  for  fraud.161  Errors  and  irregularities 
can  be  raised  by  writ  of  review.162 

The  law  imposes  on  an  executor  or  administrator 
the  duty  of  making  a  full  and  voluntary  disclosure  to 
the  heirs,  distributees,  legatees  and  devisees  of  the 
situation,  condition  and  value  of  the  estate,  and  they 
are  entitled  to  rely  on  his  representations  respecting 
such  condition,  situation  and  value,103  and  if  he  has 
betrayed  such  trust  and  the  facts  are  not  learned  until 
after  the  time  for  appeal  from  the  decree  has  expired, 
the  only  remedy  they  have  is  to  reopen  the  decree.164 

After  the  entry  of  the  decree,  as  the  amount  due  the 
heir  or  legatee  is  therein  determined,  and  the  only 
duty  of  the  personal  representative  remaining  being  to 
pay  over  the  same  to  the  party  entitled  thereto,  the 
reasons  which  prevent  the  issue  of  a  writ  of  garnish- 
ment to  a  personal  representative  do  not  apply,  and 
the  practice  in  the  courts  of  this  state  has  been  to  allow 
the  writ. 

159  In  re  Plunkett's  Estate,  33  Or.  414,  54  Pac.  152. 

ico  Bellinger  v.  Thompson,  26  Or.  320,  37  Pac.  714;  Thompson  v. 
Dekum,  32  Or.  506,  52  Pac.  517,  755. 

ici  Froebich  v.  Lane,  45  Or.  13,  76  Pac.  351;  Johnson  v.  Savage,  50 
Or.  294,  91  Pac.  1082. 

162  Section  489,  post. 

163  Creamer  v.  Ingalls,  89  Wis.  112,  61  N.  W.  82. 

164  See  Estate  of  Leavens,  65  Wis.  440,  27  N.  W.  324:  Beem  v.  "Kim- 
berly,  72  Wis.  343,  39  N.  W.  542;  Frawley  v.  Cosgrove,  83  Wis.  444, 
53  N.  W.  689. 

(756) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  451 

Under  the  Oregon  statute,  if  the  distributees  fail  to 
apply  for  their  shares  of  the  estate  within  three  months 
after  the  date  of  the  order  of  distribution,  the  court 
may,  on  a  showing  to  that  effect  by  the  executor  or 
administrator,  make  an  order  directing  payment  of 
the  same  to  the  county  treasurer,  who  holds  the  money 
in  a  special  fund,  subject  to  the  further  order  of  the 
court  for  its  payment  to  the  party  entitled  to  it.  If  no 
application  is  made  for  it  for  one  year,  it  is  paid  to  the 
state  treasurer,  and  if  not  claimed  within  ten  years, 
escheats  to  the  state.165 

Form  No.  200. 
PETITION   TO  REVOKE  DECREE   OF  DISTRIBUTION. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  E.  F.,  respectfully  represents  unto  the  court  that  on 

the  day  of  .  19 — ,  the  last  will  and  testament  of  said 

A.  B.  was  admitted  to  probate  in  said  court,  and  letters  testamentary 

thereupon  issued  to  C.  D.;  that  on  the  day  of  ,  19 — , 

said  C.  D.,  executor,  filed  an  inventory  of  the  property  belonging  to 
said  estate,  which  said  inventory  enumerated  the  following  described 
real  estate  [describe  real  estate]  and  personal  property,  which  was 

appraised  at  the  sum  of  dollars;  that  the  following  described 

personal  property  belonging  to  said  estate  came  into  the  possession  of 
said  executor,  and  was  not  enumerated  in  said  inventory,  and  has 
never  been  accounted  for  by  him,  to  wit  [describe  personalty  alleged 
to  have  been  omitted,  and  state  value];  that  your  petitioner  had  no 
knowledge  of  the  existence  of  said  last-described  personalty,  nor  of 

its  possession  by  said  C.  D.,  executor,  until  on  or  about  the  

day  of ,  19—. 

That  on  the  day  of  ,  19 — ,  said  C.  D.,  executor,  filed 

in  said  court  a  petition  alleging  that  he  had  fully  administered  said 
estate,  and  praying  for  an  order  of  distribution;  that  your  petitioner 

was  by  said  will  given  a  legacy  of  the  sum  of  dollars,  and 

was  the  devisee  of  the  following  described  real  estate  [describe  real 

estate],  which  said  real  estate  is  of  the  reasonable  value  of  

dollars;  that  your  petitioner  is  a  resident  of  the  state  of  South  Caro- 
lina, and  has  been  a  resident  of  said  state  for  more  than  twenty  years 

165  L.  0.  L.,  §  1303. 

(757) 


§  451  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

last  past,  and  that  he  had  previous  to  the  day  of  ,  19 — , 

no  knowledge  of  the  amount,  character,  and  value  of  the  said  estate 
of  said  A.  B.,  except  such  information  as  he  received  from  said  C.  D., 
executor;  that  said  C.  D.  had  full  knowledge  of  said  estate,  and  the 
value  thereof,  and  did  falsely  and  fraudulently,  and  with  the  intent 
of  him,  said  C.  D.,  to  defraud  your  petitioner,  represent  and  pretend 
to  your  petitioner  that  the  fund  from  which  said  legacy  to  your  peti- 
tioner was  required  to  be  paid  had  failed,  and  that  said  legacy,  there- 
fore, could  not  be  paid. 

That  said  C.  D.  further  falsely  and  fraudulently  represented  to 
your  petitioner  that  claims  had  been  filed  against  said  estate  in  the 

sum  of  dollars,  that  said  claims  were  legitimate  demands 

against  said  estate,  and  would  be  allowed  by  the  court,  and  that  it 
would  be  necessary  to  sell  the  real  estate  devised  to  your  petitioner 
for  the  purpose  of  paying  said  debts;  whereas,  in  truth  and  in  fact, 

the  claims  filed  against  said  estate  aggregated  the  sum  of  

dollars,  and  those  allowed  the  sum  of  dollars,  and  no  appeal 

has  been  taken  from  any  order  of  this  court  disallowing  any  claim. 

That  your  petitioner  relied  upon  said  false  and  fraudulent  repre- 
sentations, so  made  to  him  as  aforesaid  by  said  C.  D.,  and  verily  be- 
lieved that  said  C.  D.  had  represented  to  him  the  true  condition  of 
said  estate;  that,  so  relying  upon  said  false  and  fraudulent  representa- 
tions so  made  by  said  C.  D.,  as  aforesaid,  your  petitioner,  for  and  in 

consideration  of  the  sum  of  dollars  to  him  in  hand  paid  by 

said  C.  D.,  executed  and  delivered  to  him,  said  C.  D.,  a  conveyance 
and  assignment  of  all  his,  your  petitioner's,  interest  in  said  estate, 
which  said  conveyance  and  assignment  was  attached  to  the  said  peti- 
tion of  said  C.  D.  for  order  of  distribution  and  filed  in  this  court. 

That  notice  of  the  hearing  on  said  petition  for  order  of  distribution 
was  given  by  publication  in  the ,  a  newspaper  printed  and  pub- 
lished in  said  county,  and  that  your  petitioner  had  no  actual  knowledge 
of  the  date  fixed  for  said  hearing  until  the day  of ,  19 — . 

That  on  the  day  of  ,  19 — ,  an  order  of  this  court  was 

entered,  assigning  to  said  C.  D.  all  of  said  share,  both  real  and  per- 
sonal, which  was  devised  and  bequeathed  to  your  petitioner. 

Your  petitioner  therefore  prays  that  a  summons  issue  to  said  C.  D., 
commanding  him  to  show  cause  why  said  order  of  distribution  here- 
tofore entered  on  the day  of ,"19 — ,  be  revoked  and  can- 
celed; that  said  C.  D.  be  compelled  to  account  for  all  the  property 
that  has  come  into  his  possession  as  such  executor,  and  to  file  herein 
a  full,  particular,  and  itemized  account  of  his  administration  of  said 

(758) 


Chap.  33]  DIVISION  OF  THE  ESTATE.  §  452 

estate,  and  of  all  his  doings  in  respect  thereto,  or  in  any  manner 
concerning  the  same,  and  his  management  and  conduct  thereof  from 
the  beginning  of  his  said  administration. 

Dated  this  day  of  ,  19 — . 

(Signed)     E.  F., 
By  E.  H.  S.,  His  Attorney. 
[Add  verification,  Form  No.  5.] 

[This  form  is  the  petition  in  Creamer  v.   Ingalls,  supra.] 

§  452.    Discharge  of  executor  or  administrator. 

The  executor  or  administrator  may  pay  the  legacies 
and  distributive  shares  to  the  parties  entitled  thereto, 
taking  their  receipts  for  same.  He  also  has  the  right 
to  pay  them  into  court  for  the  use  of  the  parties  in 
cases  where  he  is  unable  to  find  the  legatee  or  heir,  and 
such  payment  releases  him  from  further  liability  for 
such  amounts.166  When  the  representative  has  paid 
these  shares  and  there  appear  to  be  no  further  duties 
to  be  performed,  he  is  entitled  to  a  discharge.167  The 
discharge  is  not  a  release  from  all  duties  and  lia- 
bilities; it  only  discharges  and  releases  him  from  lia- 
bilities up  to  that  time,  and  does  not  affect  his  relation 
as  a  trustee.168 

Form  No.  201. 
DISCHAEGE  OF  EXECUTOR  OR  ADMINISTRATOR. 

[Title  of  Cause  and  Court.] 

Now,  on  this day  of ,  19 — ,  C.  D.,  administrator  of  the 

estate  of  said  A.  B.,  having  filed  in  this  court  the  receipts  of  C.  D., 
E.  F.,  G.  H.,  and  C.  B.  for  the  amounts  adjudged  to  be  due  them  by 

166  Eev.  Stats.,  c.  16,  §  14,   [1241]. 

167  Cowherd  v.  Kitchen,  57  Neb.  426,  77  N.  W.   1107;  Barney  v. 
Babcock's  Estate,  115  Wis.  409,  91  N.  W.  982. 

168  Hazlett  v.  Blakeley's  Estate.  70  Neb.  613,  97  N.  W.  808;  Union 
Pacific  R.  R.  Co.  v.  Smith,  5  Xeb.  Unof.  631,  99  N.  W.  813. 

(759) 


§  452  PROBATE   AND  ADMINISTRATION.          [Chap.  33 

this  court,  from  the  residue  of  said  estate,  according  to  the  order  duly 

entered  herein  on  the  day  of ,  19 — ,  it  is  hereby  ordered 

that  said  C.  D.,  administrator,  be  and  he  hereby  is  discharged  from 
any  further  duties  of  administration,  and  that  the  sureties  upon  his 
official  bond  be  released  from  any  further  liability  thereon. 

(Signed)     J.  K., 
County  Judge. 

Under  the  Oregon  practice,  it  is  the  duty  of  the 
executor  or  administrator  with  the  will  annexed  to 
have  a  copy  of  the  will  duly  certified,  recorded  in 
every  county  of  the  state  in  which  such  testator  left 
any  real  estate,  in  the  record  of  deeds  of  such 
counties.169  In  other  counties  than  that  in  which  the 
administration  is  had,  copies  of  the  petition  for  his 
appointment,  the  order  for  letters  and  the  final  order 
discharging  him  must  also  be  recorded.170 

In  the  case  of  an  intestate  estate,  copies  of  the  peti- 
tion for  administration  and  of  the  orders  appointing 
the  administrator,  determining  heirship  and  for  his  dis- 
charge must  be  recorded.171 

169  L.  O.  L.,  §  1144. 

170  L.  O.  L.,  §  1147. 

171  L.  O.  L.,  §  1147. 

(760) 


CHAPTER  XXXIV. 
ENFORCEMENT  OF  PROBATE  BONDS. 

§  453.  Purpose  for  Which  Bond  is  Given. 

454.  Failure  of  Bond  to  Comply  With  Statute. 

455.  Common-law  Bond. 

456.  Cumulative  Bond. 

457.  Liability  of  Sureties  of  Coexecutors  and  Coadministrators. 

458.  Who  can  Bring  Suit  on  Probate  Bond. 

459.  Proceedings  Necessary  in  Order  to  Sustain  Action  on  Probate 

Bond. 

460.  Fixing  Liability  of  Bondsmen. 

461.  What  Constitutes  a  Breach  of  the  Bond. 

462.  What  Constitutes  a  Breach  of  the  Bond — Concluded, 

463.  Losses  not  Covered  by  Bond. 

464.  Residuary  Legatee's  Bond. 

465.  Suit  by  Administrator  De  Bonis  Non. 

466.  Authority  to  Bring  Suit  on  Bond. 

467.  Time  Within  Which  Action  may  be  Brought. 

468.  Liability  of  Sureties. 

469.  Liability  in  Regard  to  Real  Estate. 

470.  Liability  for  Proceeds  of  Sales  of  Real  Estate  Under  Order 

of  Court. 

471.  Action  on  the  Bond. 

472.  Action,  When  Barred. 

§  453.    Purpose  for  which  probate  bond  is  given. 

The  object  of  the  bond  required  of  an  executor  or 
administrator  before  letters  issue  is  to  secure  to  all 
parties  interested  in  the  estate — creditors,  heirs  and 
legatees — the  amounts,  or  specific  articles,  to  which 
the  court  finds  they  are  justly  entitled,  and  to  afford 
them  a  source  from  which  they  can  enforce  payment 
of  what  they  should  receive  from  the  estate,  should 
the  personal  representative  be  guilty  of  mismanage- 
ment, misappropriation  of  funds,  negligence,  or  of  fail- 
ure to  comply  with  the  decrees  of  the  county  court. 

(761) 


§  454  PROBATE   AND  ADMINISTRATION.          [Chap.  34 

§  454.    Failure  of  bond  to  comply  with  the  statutes. 

The  statutes  specifically  define  what  the  conditions 
of  the  bond  shall  be.  They  are  construed  as  directory, 
and  if  the  bond  substantially  complies  therewith,  it  is 
valid.1  If  some  essential  conditions  are  omitted,  the 
parts  which  should  have  been  inserted  cannot  be  read 
into  it,  and  the  sureties  are  liable  only  for  a  breach 
of  the  conditions  it  contained.2 

The  general  rule  is  that  informalities  and  omissions 
where  there  was  an  evident  intention  on  the  part  of 
the  representative  and  his  sureties  to  comply  with  all 
the  legal  requirements  will  not  make  the  bond  void, 
though  its  conditions  vary  slightly  from  those  re- 
quired, except  in  so  far  as  it  increases  the  statutory 
liability,3  as  where  it  did  not  state  the  name  of  the 
obligee  running  to  "the  judge  of  the  probate  court,"4 
or  where  it  ran  to  the  surrogate  of  another  county 
but  the  conditions  made  it  apply  to  the  county  where 
filed,5  or  where  it  failed  to  give  the  name  of  the  de- 
cedent, it  appearing  to  be  the  intention  of  the  parties 
to  obligate  themselves  to  all  concerned  in  the  will 
which  their  principal  was  called  on  to  execute,6  but 
one  in  which  no  person  or  officer  is  named  as  obligee,7 

1  Holbrook  v.  Bentley,  82  Conn.  502;  Lanier  v.  Irvine,  21  Minn.  447; 
Schill  v.  Reisdorf,  88  111.  411;  Probate  Court  v.  Strong,  27  Vt.  202; 
Graves  v.  McHugh,  58  Mo.  499. 

2  Carroll  v.  Connett,  2  J.  J.  Marsh.  (Ky.)   195. 

3  State  v.  Price,  15  Mo.  375;  Newton  v.  Cox,  76  Mo.  352. 
<  Buel  v.  Dickey,  9  Neb.  285,  2  N.  W.  884. 

5  Gerould  v.  Wilson,  81  N.  Y.  573. 

c  Foley  v.  Hamilton,  89  Iowa,  686,  57  N.  W.  439. 

7  Tidball  v.  Young,  58  Neb.  261,  78  N.  W.  507. 

(762) 


Chap.  34]       ENFORCEMENT    OF   PROBATE    BONDS.  §  455 

or  no  amount  is  given,8  is  neither  a  statutory  nor  com- 
mon-law obligation,  and  is  void. 

§  455.     Common-law  bond. 

If  the  instrument  intended  for  a  probate  bond  utterly 
fail  to  comply  with  the  statute,  or  be  given  by  a  person 
acting  under  an  absolutely  void  grant  of  letters,  it  will 
still  be  valid  as  a  common-law  obligation,9  and,  after  he 
has  acted  as  such  personal  representative,  his  sureties 
would  be  liable  on  the  bond  for  a  violation  on  the  part 
of  their  principal  of  the  legal  obligations  which  he 
assumed  therein.10 

Action  upon  such  common-law  bond  must  be  brought 
by  the  county  judge  to  whom  it  was  given,  and  who 
approved  it,  as  trustee  for  the  benefit  of  all  parties 
interested  in  the  estate.  His  successor  has  no  au- 
thority to  bring  the  action.11 

The  Oregon  statutes  provide  that  a  surety  on  the 
bond  of  an  executor  or  administrator  may  be  released 
from  subsequent  liability  for  the  act  of  his  principal 
by  order  of  the  court  upon  the  filing  by  such  principal 
of  a  new  bond.  Such  surety  may  apply  by  petition 
to  the  county  court  which  approved  the  bond,  praying 
to  be  relieved  from  further  liability  for  the  acts  or 
omissions  of  the  executor  or  administrator  occurring 
after  the  date  of  the  order  relieving  him,  and  for  an 
order  to  his  principal  to  show  cause  why  such  surety 
should  not  be  released  as  prayed  and  the  principal  re- 
quired to  account  and  to  give  a  new  bond.  The  court 
thereupon  causes  an  order  to  be  issued  returnable  at 

8  Everts  v.  Stiger,  6  Or.  55. 

»  State  v.  Creusbauer,  68  Mo.  254. 

10  Shalter's   Appeal,   43   Pa.    83;    Cleaves   v.   Dockray,   67   Me.   118; 
Waterman  v.  Dockray,  79  Me.  149,  8  Atl.  685. 

11  Frye  v.  Crockett,  77  Me.  157. 

(763) 


§  456  PEOBATE   AND  ADMINISTRATION.          [Chap.  34 

such  time  and  place  and  to  be  served  in  such  manner 
as  said  court  shall  direct,  and  may  in  the  meantime 
restrain  the  principal  from  acting,  except  in  such  man- 
ner as  the  court  shall  direct  for  the  preservation  of 
the  estate.  If  the  executor  or  administrator  gives  a 
new  bond  and  the  same  is  duly  approved  by  the  court 
within  the  time  limited  in  the  order,  the  court  must 
make  an  order  releasing  the  surety  filing  the  petition 
from  further  liability  as  prayed;  and  in  default  of 
such  principal  thus  accounting  and  filing  a  new  bond 
within  the  time  limited  in  such  order,  said  court  shall 
at  once  make  an  order  directing  him  to  account  within 
ten  days,  and  if  the  estate  shall  be  found  and  made 
good  or  properly  secured,  such  surety  shall  be  dis- 
charged from  any  and  all  further  liability  as  such  for 
the  subsequent  acts  of  his  principal  after  the  date  of 
such  surety  being  relieved  or  discharged,  and  further 
discharging  said  executor  or  administrator  from  his 
position.12 

§  456.    Cumulative  bond. 

When  an  additional  bond  is  given  under  the  order 
of  the  county  court,  or  voluntarily  without  such  order, 
the  liability  of  the  sureties  on  the  first  bond  are  in  no 
way  affected.  They  still  remain  liable  for  the  past, 
present  and  future  misconduct  of  their  principal,  and 
the  county  court  cannot  change  such  liability.13  The 
liability  of  the  new  bondsmen  dates  back  to  the  grant 
of  letters,  the  same  as  that  of  the  sureties  on  the  new 
bond.14 

12  L.  O.  L.,  §  685. 

13  Bellinger  v.  Thompson,  26  Or.  330,  37  Pac.  714;  Commonwealth  v. 
Bogers,  53  Pa.  470;  Wood  v.  Williams,  61  Mo.  63;  Eichter  v.  Leiby's 
Estate,  101  Wis.  434,  77  N.  W.  745. 

14  Elizalde  v.  Murphy,  163  Cal.  681,  126  Pac.  978. 

(764) 


Chap.  34]       ENFORCEMENT   OF   PROBATE   BONDS.  §  457 

Under  the  Oregon  statutes,15  the  giving  of  a  new  or 
substituted  bond  under  the  order  of  the  court  dis- 
charges the  sureties  on  the  former  bond  from  subse- 
quent liability. 

The  two  sets  of  sureties  are  equally  liable  for  a 
breach  of  the  conditions  of  either  obligation,  no  matter 
when  it  occurred.  As  far  as  creditors,  legatees  or  dis- 
tributees are  concerned,  there  is  no  primary  liability,16 
but  as  between  themselves,  a  surety  on  either  bond 
against  whom  a  judgment  has  been  rendered  for  a 
default  of  his  principal  can  enforce  contribution  from 
the  sureties  on  both  bonds.17 

§  457.    Liability  of  sureties  of  coexecutors  and  coad- 

ministrators. 

The  surety  on  the  separate  bond  of  a  coexecutor  or 
coadministrator  is  only  liable  for  a  violation  of  the 
obligations  of  the  bond  by  his  own  principal,18  but 
where,  as  is  usually  the  case,  the  representatives  have 
together  administered  the  estate  and  together  trans- 
acted its  business,  each  having  a  knowledge  of  what 
the  other  was  doing,  or  of  sufficient  facts  to  give  him 
notice,  a  surety  on  the  bond  of  one  is  liable  for  the 
principal  on  the  other  bond,  because  his  principal  par- 
ticipated in  them  and  contributed  to  the  loss.19 

is  L.  0.  L.,§§  1161,  1162. 

16  Scofield  v.  Churchill,  72  N.  Y.  565;  Brown  v.  State,  23  Kan.  235; 
Lingle  v.  Cook's  Admrs.,  32  Gratt.  (Va.)  262. 

IT  Rudolf  v.  Malone,  104  Wis.  470,  80  N.  W.  743;  Thompson  T. 
Dekum,  32  Or.  506,  52  Pac.  517. 

18  McKim  v.  Aulbach,  130  Mass.  481. 

i»  Clark  v.  State,  6  Gill  &  J.  (Md.)  288;  Cameron  v.  Justice  of 
Inferior  Court,  Richmond  Co.,  1  Ga.  36.  See,  also,  In  re  Irvine's 
Estate,  203  Pa.  603,  53  Atl.  502;  In  re  Niles'  Estate,  113  N.  Y.  547, 
21  N.  E.  687.  See  §  426,  supra. 

.(765) 


§  453  PROBATE   AND  ADMINISTKATION.          [Chap.  34 

If  he  did  not  participate  in  the  wrongful  acts  of  his 
associate,  or  having  knowledge  of  such  acts  did  not 
acquiesce  in  them,  he  is  liable  as  a  surety  for  his  as- 
sociate, but  his  sureties  are  not  liable.20 

The  sureties  on  a  joint  bond  of  coexecutors  or  coad- 
ministrators  are  liable  for  the  acts  or  defaults  of 
either  or  any  of  them.  The  principals  are  jointly  lia- 
ble as  sureties  for  the  acts  and  defaults  of  each  other 
and  are  jointly  liable  to  a  surety  who  has  been  com- 
pelled to  make  any  payment  on  account  of  the  neglect 
or  default  of  either.21  The  liability  of  the  obligors,  as 
between  themselves,  is  as  joint  principals,  and  not  as 
sureties,  when  the  property  sought  to  be  recovered  was 
received  by  them  jointly,  was  jointly  receipted  for  by 
them,  or  they  jointly  participated  in  a  devastavit.22 

§  458.    Who  can  bring  suit  on  probate  bond. 

An  action  may  be  brought  on  the  bond  of  an  execu- 
tor or  administrator  by  any  creditor  when  the  amount 
due  him  has  been  ascertained  and  ordered  paid,  if 
the  executor  or  administrator  shall  neglect  to  pay  the 
same  when  demanded,23  which  would  include  the  holder 
of  a  judgment  lien  on  realty  which  has  been  sold  by 
the  administrator  by  order  of  court,  subject,  of  course, 
to  the  lien,  and  the  proceeds  applied  in  payment  of 

20  Sutherland  v.  Brush,  7  Johns.  Ch.  (N.  Y.)   17;  Monell  v.  Monell, 
5  Johns.  Ch.  (N.  Y.)  283;  Manahan  v.  Gibbons,  19  Johns.  (N.  Y.)  427. 

21  Moore  v.  State,  49  Ind.  558;  Ames  v.  Armstrong,  106  Mass.  15; 
Hannum  v.  Day,  105  Mass.  33;  Dobyns  v.  McGovern,  15  Mo.  662;  Boyd 
v.  Boyd,  1  Watts  (Pa.),  365. 

22  Lenoir  v.  Winn,  4  Desaus.  (S.  C.)  65;  Clark  v.  State,  6  Gill  &  J. 
(Md.)  288. 

23  Eev.  Stats.,  c.  17,  §  252,  [1515]. 

(766); 


Chap.  34]       ENFORCEMENT    OF  PROBATE    BONDS.  §  459 

the  general  creditors  of  the  estate,24  by  any  person  as 
next  of  kin  to  recover  his  share  of  the  personal  estate, 
after  the  entry  of  a  decree  of  the  court  declaring  the 
amount  due  to  him,  if  the  executor  or  administrator 
shall  fail  to  pay  the  same  on  demand,25  and  by  any 
creditor,  legatee,  distributee  or  other  person  interested 
in  the  estate  who  has  sustained  a  loss  on  account  of 
the  failure  of  the  executor  or  administrator  to  per- 
form any  order  or  decree  made  by  a  county  court  hav- 
ing jurisdiction,  for  rendering  of  any  account,  for  the 
settlement  of  an  account,  for  the  payment  of  debts, 
legacies  or  distributive  shares,  for  the  delivery  of 
specific  legacies,  or  by  reason  of  any  maladministra- 
tion of  the  personal  representative.26 

§  459.    Proceedings  necessary  in  order  to  sustain  an 
action  on  a  probate  bond. 

It  is  a  rule  of  law,  so  well  settled  by  the  older  judicial 
decisions  as  to  seldom,  if  ever,  be  raised  in  the  courts 
at  the  present  time,  that,  before  an  action  upon  a  pro- 
bate bond  can  be  sustained,  the  liability  of  the  estate 
to  the  would-be  plaintiff  must  be  fully  determined,  the 
personal  representative  must  have  refused  to  perform 
his  legal  duty,  and  leave  of  the  court  which  approved 
the  bond  and  issued  the  letters  had  and  obtained.27 
The  liability,  therefore,  cannot  well  be  determined 

24  State  v.  Brown,  80  Ind.  425. 

25  Rev.  Stats.,  c.  17,  §  253,  [1516]. 

26  Rev.  Stats.,  c.  17,  §§  254,  255,  [1517],  [1518]. 

27  Adams  v.  Petrain,  11  Or.  304,  3  Pac.  163;  Probate  Court  v.  Kim- 
ball.   42   Vt.   320;   State  v.   Stafford,   73   Mo.   658;   Commonwealth   v. 
Wenrick,  8  Watts  (Pa.),  159;  Commonwealth  v.  Fretz,  4  Pa.  347;  Com- 
monwealth v.  Moltz,  10  Pa.  527. 

(767) 


§  459  PROBATE   AND  ADMINISTRATION.          [Cliap.  34 

until  the  debts  are  allowed,  and  the  administration  of 
the  estate  nearly,  if  not  entirely,  completed. 

The  duty  of  a  personal  representative  of  a  decedent 
to  pay  the  debts,  legacies,  allowances  and  costs  of  ad- 
ministration does  not  become  absolute  and  operative 
until  an  order  of  the  court  has  been  made  requiring 
him  to  pay  them,  and  such  payment  must  be  demanded. 
"The  liability  of  a  surety  is  contingent,  *  *  *  an(j 
therefore,  before  suit  can  be  brought  against  him,  the 
party  in  interest,  whether  creditor,  legatee,  heir  or  dis- 
tributee, must  proceed  against  the  executor  or  adminis- 
trator," and  determine  the  amount  owing  by  him  in 
his  official  capacity  to  such  party.28 

Except  in  the  case  of  residuary  legatees,  the  liability 
of  the  bondsmen  only  attaches  when  the  debt,  claim  or 
demand,  whether  of  creditor,  heir  or  legatee,  is  a 
proper  demand  against  the  estate,  and  the  principal 
has  received  sufficient  assets  of  the  estate  to  pay  it 
either  in  whole  or  in  part,  and  has  wasted  or  converted 
them,  or  refuses  to  apply  them  in  payment;  and  no 
action  can  be  maintained  against  the  sureties  unless 
the  amount  of  the  debt,  the  liability  of  the  estate 
therefor,  the  sufficiency  of  the  assets,  the  fact  of  waste 
or  conversion,  and  the  consequent  liability  of  the  prin- 
cipal has  been  first  established  by  the  judgment  or 
decree  of  a  competent  court  in  a  proper  proceeding 
duly  prosecuted  against  such  principal.29 

Under  the  common  law,  the  following  steps  were  held 
necessary  in  order  to  reach  the  sureties  on  an  adminis- 

28  Commonwealth  v.  Fretz,  4  Pa.  347. 

29  May  v.  Kelly,  61  Ala.  489;  Henderson  v.  Levy,  52  Ga.  35;  Thomp- 
son v.  Bondurant,  15  Ala.  346,  50  Am.  Dec.  136;  Cameron  v.  Justice* 
of  Inferior  Court,  Richmond  Co.,  1  Ga.  36. 

(768), 


Cliap.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  460 

tration  bond,  and  render  them  liable  for  the  debts  of 
the  estate:  First,  a  suit  against  the  executor  or  ad- 
ministrator in  his  representative  capacity,  with  a  judg- 
ment de  bonis  testatoris  or  de  bonis  intestatis,  and  a  re- 
turn of  nulla  bona  on  an  execution  thereon;  second,  an 
action  on  the  bond  founded  upon  the  judgment.30 
Formerly,  after  the  first  judgment  was  obtained,  an  ac- 
tion of  debt  on  that  judgment,  suggesting  a  devastavit 
against  the  executor  or  administrator  personally  and  a 
judgment  de  propriis,  was  necessary.31 

§  460.    Fixing  liability  of  bondsmen, 

Statutes  like  those  in  this  state  requiring  claims 
against  decedent's  estates  to  be  allowed  and  ordered 
paid  by  the  county  court,  and  the  shares  of  the  dis- 
tributees and  legatees  to  be  determined  by  order  of 
court,  are  substituted  for  the  common-law  method  of 
fixing  the  liability.  An  order  for  their  payment  must 
be  made  before  suit  can  be  brought  on  the  bond,32 
and  a  noncompliance  with  the  order  of  payment  is 
sufficient  to  sustain  the  action  on  the  bond  without  any 
judgment  establishing  the  devastavit.33  In  such  ac- 
tion, actual  proof  of  a  devastavit,  except,  of  course, 

30  Dean  v.  Portis,  11  Ala.  104;  Hobbs  v.  Middleton,  1  J.  J.  Marsh. 
(Ky.)  189;  People  v.  Dunlap,  13  Johns.  (N.  Y.)  437;  Dobbins  v.  Half- 
acre,  52  Miss.  561. 

31  Stewart  v.  Champaign  County  Treasurer,  4  Ohio,  98;  Catlett  v. 
Carter's   Exrs.,   2   Munf.   (Va.)    24;   Justices   of  Inferior  Court,  Irwin 
County,  v.  Sloan,  7  Ga.  31. 

32  Lydick  v.  Chaney,  64  Neb.  288,  89  N.  W.  801;  First  Nat.  Bank  of 
St.  Paul  v.  How,  28  Minn.  150,  9  X.  W.  626;  State  v.  Stafford,  73  Mo. 
658;  Probate  Court  v.  Kent,  49  Vt.  380;  Hood  v.  Hood,  85  N.  Y.  561. 

33  Warren  v.  Powers,  5   Conn.  373;   Weber  v.  Noth,  51  Iowa,   375, 
1  N.  W.  652;  Brewster  v.  Balch,  9  Jones  £  S.  (N.  Y.)  63. 

49— Pro.  Ad.  (769) 


§  461  PROBATE  AND  ADMINISTRATION.  [Chap.  34 

where  the  action  is  brought  against  the  representative 
for  a  conversion,  is  not  necessary,  for  the  county  court, 
in  making  the  order  requiring  the  payment  to  be  made, 
in  effect  passes  upon  the  question,  and  such  order  is 
final  and  conclusive  unless  an  appeal  be  taken  there- 
from. It  must  appear  that  all  steps  required  have 
been  taken  to  enforce  the  order  of  the  county  court, 
but  without  avail.34 

A  decree  or  order  of  the  county  court  ascertaining 
the  shares  of  the  legatee  or  distributee  is  a  sufficient 
determination  of  the  liability  of  the  executor  or  ad- 
ministrator in  an  action  brought  upon  the  bond.35 
Until  such  decree  or  order  has  been  made  and  entered, 
and  there  has  been  a  failure  to  comply  therewith,  the 
nonpayment  of  a  legacy  or  distributive  share  will  not 
support  an  action  on  the  bond.36  It  has  been  held  not 
necessary  for  the  court  to  ascertain  the  actual  share 
of  the  distributee  or  creditor,  if  the  records  show  a 
decree  due  from  the  personal  representative  to  the 
creditors,  heirs  or  legatees,  and,  if  the  same  is  not 
paid,  an  action  has  been  maintained  on  the  bond  for 
the  benefit  of  all  those  interested.37 

§  461.    What  constitutes  a  breach  of  the  bond. 

A  conversion,  waste  or  misappropriation  of  the  assets 
of  the  estate  is,  of  course,  a  violation  of  the  conditions 

34  Hamlin  v.   Kinney,  2   Or.   91;   Adams  v.  Petrain,   11   Or.   304,  3 
Pac.  163. 

35  Judge   of   Probate   v.   Fillmore,   1   D.   Chip.    (Vt.)   420;   Common- 
wealth   v.   Wenrick,   8   Watts    (Pa.),    159;    United   States   v.   King,   1 
McArth.  (D.  C.)  499. 

36  Pickett  v.  Gilmer,  32  La.  Ann.  991;  Judge  of  Probate  v.  Adams, 
49  N.  H.  150;  Dawson  v.  Dawson,  25  Ohio  St.  443;   Municipal  Court 
v.  Henry,  11  R.  I.  563;  Thornton  v.  Glover,  25  Miss.  132. 

37  Ordinary  v.  Mortimer,  4  Rich.  (S.  C.)  371. 

(770) 


Chap.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  461 

of  the  bond,  and  the  one  for  which  actions  are  most 
frequently  brought.  It  may  have  taken  place  before 
the  inventory  was  filed,  and  be  of  property  received 
before  the  bond  was  executed,  if  such  conversion  or 
misappropriation  occurs  afterward.38  The  bondsmen 
are  also  liable  for  the  failure  of  their  principal  to  resist 
unjust  and  unfounded  claims  against  the  estate  to  the 
amount  of  such  claims;39  for  his  failure  to  reduce  to 
possession  known  assets  of  the  estate,  or  for  delay  and 
negligence  in  reducing  them  to  possession,  whereby 
a  loss  resulted;40  for  delay  in  rendering  his  accounts, 
whereby  a  loss  was  sustained  by  the  estate  for  the  use 
of  money  lying  idle  in  his  hands;41  for  delay  or  failure 
to  file  the  inventory  (but  for  this  particular  breach 
nominal  damages  only  can  be  recovered  unless  some 
actual  loss  to  the  estate  is  established).42 

The  failure  of  an  executor  or  administrator  with  the 
will  annexed  to  administer  the  estate  according  to  the 
terms  of  the  will  constitutes  a  breach  of  the  bond  for 
which  an  action  will  lie  against  the  sureties,  as  where 
the  will  directed  that  certain  property  be  invested  in  a 
certain  manner,  and  the  personal  representative  neg- 
lected to  make  the  investment,  whereby  a  loss  resulted, 
or  a  residuary  legatee  used  the  assets  of  the  estate  for 
his  own  personal  ends,  and  left  the  debts  unpaid.43 

38  State  v.  Scott,  12  Ind.  529;  Bellinger  v.  Thompson,  26  Or.  338, 
37  Pac.  714. 

3»  Smith  v.  Cuyler,  78  Ga.  654,  3  S.  E.  406. 

40  Bourne  v.  Stevenson,  58  Me.  499. 

41  McKim   v.   Bartlett,   129   Mass.   226;    Ordinary   v.   Barcalow,   36 
N.  J.  L.  15;  Commonwealth  v.  Bryan,  8  Serg.  &  R.  (Pa.)  128. 

42  People  v.  Hunter,  89  111.  392;  State  v.  Smith,  52  Conn.  557. 

43  Edmunds'  Admr.  v.  Scott,  78  Va.  720;  Probate  Court  v.  Angell, 
14  R.  I.  495;  Judge  of  Probate  v.  Claggett,  36  N.  H.  381;  United  States 
v.  Barker,  2  McArth.   (D.  C.)  444. 

(771) 


§  462  PROBATE  AND  ADMINISTRATION.  [Chap.  34 

§  462.    What  constitutes  a  breach  of  the  bond — Con- 
cluded. 

Nonpayment  of  a  legacy  is  a  breach  of  the  bond  when 
the  amount  due  and  the  order  of  payment  have  been 
duly  determined  in  the  manner  provided  in  the  preced- 
ing sections,44  and  it  is  immaterial  whether  the  legacy 
grows  out  of  realty  or  personalty,  if  the  executor  is 
chargeable  with  it;45  but  where  an  administrator  with 
the  will  annexed  gave  an  ordinary-  administrator's 
bond,  instead  of  the  bond  required  by  statute,  the 
court  held  his  bondsmen  could  not  be  compelled  to 
pay  a  legacy,  as  the  obligation  they  executed  contained 
no  reference  whatever  to  any  will.46  A  failure  to 
comply  with  any  order  or  decree  of  the  county  or  dis- 
trict court  in  reference  to  his  duties,  whereby  a  loss 
occurs  to  the  estate,  will  render  his  bondsmen  liable.47 

Where  an  administrator  applies  the  proceeds  of  the 
sale  of  lands  made  by  order  of  court,  upon  which  there 
are  judgment  liens,  for  the  payment  of  other  indebted- 
ness, the  holders  of  such  judgment  liens  may  bring  an 
action  on  the  bond  for  the  amount  of  their  demands.48 
But  where  the  administrator  in  good  faith,  and  under 
the  order  of  the  court,  pays  other  encumbrances  out  of 
the  proceeds  of  the  sales  of  such  lands  sold,  no  action 
will  lie  therefor  on  his  bond.49 

44  Appeal  of  American  Board  of  Commrs.,  27  Conn.  344;   Ruby  v. 
State,  55  Md.  484;  Gandolfo  v.  Walker,  15  Ohio  St.  251. 

45  Moore  v.  Waller's  Heirs,  1  A.  K.  Marsh.  (Ky.)  488. 

46  Fulcher  v.  Commonwealth,  3  J.  J.  Marsh.  (Ky.)  592. 

47  Hancock  v.  Hubbard,  19  Pick.  (Mass.)   167;  State  v.  James,  82 
Mo.  509;  O'Gorman  v.  Lindeke,  26  Minn.  93,  1  N.  W.  841. 

48  State  v.  Brawn,  80  Ind.  425. 

49  State  v.  Schileiffarth,  9  Mo.  App.  431. 

(772) 


Chap.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  463 

When  the  personal  liability  of  the  executor  or  admin- 
istrator has  been  determined  in  the  manner  provided  in 
the  preceding  section,  the  nonpayment  of  a  debt  which 
has  been  allowed  as  proper  demand  against  the  estate, 
when  the  personal  representative  has  received  suffi- 
cient assets  which  are  appropriate  for  its  payment, 
constitutes  a  breach  of  the  bond.50  This  applies  to 
any  claim  which  has  been  allowed  by  the  court,  the 
order  allowing  which  still  remains  in  full  force  and 
effect,  even  though  it  subsequently  appears  that  the 
claim  was  barred  by  the  statute,  and  should  have  been 
rejected.51 

§  463.    Losses  not  covered  by  bond. 

The  bondsmen  are  not  liable  for  services  rendered  the 
executor  or  administrator  by  a  third  party  in  the 
course  of  administering  the  estate,  because,  although 
the  payment  is  one  properly  payable  from  the  assets 
of  the  estate,  it  is  the  personal  representative  who  in- 
curred the  debt;52  but  where  an  administrator  brought 
replevin  for  goods  which  he  claimed  belonged  to  the 
estate,  and,  failing  in  the  action,  the  surety  on  the 
replevin  bond  was  compelled  to  pay,  the  judgment  was 
held  to  be  a  debt  of  the  estate  for  which  the  sureties 
upon  the  administration  bond  were  liable.53  The  non- 
payment of  a  note  belonging  to  the  estate,  and  trans- 
ferred to  a  creditor  thereof  in  settlement  of  his  claim, 
does  not  render  the  bondsmen  liable  for  it.54  Nor  can 

50  Mortenson  v.  Bergthold,  64  Neb.  208,  89  N.  W.  742. 

51  Weber  v.  Noth,  51  Iowa,  375,  1  N.  W.  652. 

52  Baker  v.  Moor,  63  Me.  443;  Taylor  v.  Mygatt,  26  Conn.  184. 

63  State  v.  Dailey,  7  Mo.  App.  549. 

64  Rawson  v.  Piper,  34  Me.  98. 

(773) 


§§464,465       PROBATE    AND    ADMINISTRATION.          [Chap.  34 

they  be  held  liable  for  the  failure  of  their  principal  to 
procure  a  license  for  the  sale  of  lands  for  the  purpose 
of  obtaining  funds  with  which  to  pay  plaintiff's  claim.55 

§464.    Residuary  legatee's  bond. 

The  bond  of  a  residuary  legatee  stands  on  a  differ- 
ent footing  than  the  usual  executor's  bond.  For  the 
reason  that  he  is  not  required  to  file  an  account  it  has 
been  held  that  a  legatee  need  not  obtain  an  order  from 
the  court  for  the  payment  of  his  legacy  before  bring- 
ing suit.56  The  claim  of  a  creditor  must  be  allowed 
before  he  can  bring  suit. 

The  bond  being  conditioned  to  pay  all  the  debts  and 
legacies  of  the  testator,  it  will  be  conclusively  pre- 
sumed that  the  executor  has  in  his  possession  suffi- 
cient assets  to  pay  them,  and  many  of  the  usual  de- 
fenses in  cases  on  administration  bonds  are  thus  cut 
off.57 

§  465.    Suit  by  administrator  de  bonis  non. 

An  administrator  de  bonis  non  has  power  to  bring 
an  action  on  the  bond  of  the  former  executor  or  ad- 
ministrator for  any  damages  sustained  by  reason  of 
his  neglect,  or  the  neglect  or  refusal  of  his  representa- 
tives, to  turn  over  to  such  new  administrator,  pursuant 
to  the  order  and  decree  of  the  county  court,  or  accord- 
ing to  law,  any  estate  remaining  unadministered.58 

55  Hawkins  v.  Carpenter,  88  N.  C.  403. 

56  Smith  v.  Lambert,  30  Me.  137. 

57  Buel  v.  Dickey,  9  Neb.  285,  2  N.  W.  884;   Col  well  v.  Alger,  5 
Gray  (Mass.),  67;  Jones  v.  Richardson,  5  Met.   (Mass.)  24,7. 

58  Rev.  Stats.,  c.  17,  §  257,  [1521]. 

(774) 


Chap.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  46G 

Before  such  suit  can  be  brought  a  hearing  must  be 
had  in  the  county  court,  and  the  liability  of  the  original 
representative  or,  in  case  of  his  death,  of  his  personal 
representatives,  to  the  estate  determined,59  and  an 
order  of  the  court  made  thereon  directing  him  or  his 
representatives  to  deliver  to  the  administrator  de  bonis 
non  the  unadministered  assets  and  to  pay  to  him  the 
balance,  if  any  found  due,  on  account  of  the  neglect 
or  wrongful  act  of  the  original  representative.80 

§  466.    Authority  to  bring  suit  on  bond. 

An  action  upon  the  executor's  or  administrator's 
bond  must  be  brought  in  the  name  of  the  party  au- 
thorized by  the  county  judge  to  bring  the  same,  or  in 
the  name  of  the  guardian  of  such  party,  and  in  such 
action  the  plaintiff  shall  be  entitled  to  recover  such 
damage  as  he  may  have  sustained,  to  the  amount  of 
the  bond,  and  no  more,  and  a  judgment  in  favor  of  a 
party  for  one  delinquency  shall  not  preclude  the  same 
or  another  party  for  an  accounting  on  the  same  bond 
for  other  delinquencies,  but  the  aggregate  of  all  the  re- 
coveries on  such  bond  shall  not  exceed  the  amount  for 
which  the  bond  was  given.  Permission  must  be  ob- 
tained from  the  county  judge  to  prosecute  the  action, 
and  upon  granting  the  same,  he  is  required  to  furnish 
the  applicant,  on  payment  of  the  legal  fee,  a  certified 
copy  of  the  bond,  together  with  a  certificate  that  per- 
mission has  been  granted  to  prosecute,  and  the  name 

59  Brown  v.  Jacobs,  24  Neb.  712,  40  N.  W.  137;  Adams  v.  Petrain, 
11  Or.  304,  3  Pac.  163. 

60  Kutenic  v.  Hamakar,  40  Or.  263,  67  Pac.  196;  United  States  v. 
Cox,  18  How.  (U.  S.)   100;  Beall  v.  New  Mexico,  16  Wall.  (U.  S.)  535; 
Campbell  v.  State,  62  Md.  1;  In  re  Connelley's  Estate,  73  Cal.  423. 

(775) 


§  466  PROBATE  AND  ADMINISTRATION.  [Chap.  34 

and  residence  of  the  applicant.61  The  application  may 
be  made  by  a  creditor,  legatee  or  distributee  or  other 
person  interested  in  the  estate.62  It  should  be  by  peti- 
tion under  oath  and  the  order  may  be  entered  by  the 
court  without  notice.63 

Form  No.  202. 

APPLICATION  FOB  PERMISSION  TO  BRING  SUIT  ON  A  PRO- 
BATE BOND. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  E.  F.,  respectfully  represents  unto  the  court  that 
he  is  a  resident  of  the  village  of  ,  Nebraska;  that  on  the 

day  of  ,  19 — ,  letters  of  administration  upon  the  estate 

of  said  A.  B.,  deceased,  were  issued  out  of  and  under  the  seal  of  said 
court  to  one  C.  D.;  that  on  the day  of ,  19 — ,  your  peti- 
tioner filed  a  claim  against  said  estate  with  said  court;   that  on  the 

day   of  ,   19 — ,   said   claim   was   allowed  by   said   court 

in  the  sum  of  dollars  ($ );  that  on  the day  of 

,  19 — ,  a  decree  was  duly  entered  by  said  court  requiring  said 

C.  D.,  administrator  as  aforesaid,  to  pay  to  your  petitioner  the  said 

sum  of  dollars  ($ ),  which  said  sum  your  petitioner  then 

and  there  demanded  of  said  C.  D.,  administrator,  and  that  said  C.  D., 
administrator,  has  neglected  and  refused  to  pay  the  same. 

Your  petitioner  therefore  prays  that  permission  may  be  granted  him 
to  bring  suit  upon  the  bond  of  said  C.  D.,  administrator  of  the  said 
estate  of  A.  B.,  deceased. 

Dated  this day  of ,  19 — . 

(Signed)     E.  F. 

[Add  verification,  Form  No.  5.] 

61  Rev.  Stats.,  c.  17,  §  256,  [1520]. 

62  Section  458,  supra. 

63  Roberts  v.  Weadock,  98  Wis.  400,  74  N.  W.  93;  Richardson  v. 
Hazleton,  101  Mass.  108;  Bennett  v.  Overing,  16  Gray  (Mass.),  267. 

(776), 


Chap.  34  J       ENFORCEMENT  OF  PROBATE  BONDS.  §  466 

Form  No.  203. 

APPLICATION    OF     ADMINISTRATOR   .DE     BONIS     NON     FOR 
LEAVE  TO  BRING  SUIT  ON  BOND  OF  HIS  PREDECESSOR. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  E.  F.,  respectfully  represents  unto  the  court  that  on 

the  day  of  ,  19 — ,  letters  of  administration  de  bonis  non 

upon  the  estate  of  said  A.  B.,  deceased,  were  issued  to  him  out  of  and 
under  the  seal  of  this  court;  that  on  the  day  last  aforesaid  said  court 
made  an  order  requiring  G.  I.,  the  original  administrator  of  said  estate, 
to  turn  over  to  your  petitioner  all  the  assets  of  said  estate  then  re- 
maining in  his  hands  unadministered,  and  your  petitioner  thereupon 
demanded  of  said  C.  D.  said  assets  of  said  estate,  and  said  C.  D.  has 
neglected  and  refused  to  deliver  said  assets  to  your  petitioner. 

Your  petitioner  therefore  prays  that  leave  may  be  granted  him  to 
bring  suit  upon  the  bond  of  said  C.  D.,  the  original  administrator  of 
said  estate. 

Dated  this day  of ,  19 — . 

(Signed)     E.  F. 

[Add  verification,  Form  No.  5.] 

Form  No.  204. 

ORDER  GRANTING  PERMISSION  TO  BRING  SUIT  ON  BOND. 
[Title  of  Cause  and  Court.] 

Now,   on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  on  the  petition,  duly  verified,  of  E.  F.,  for  permission  to  bring 
suit  upon  the  administration  bond  of  C.  D.,  administrator  of  said 
estate,  and  was  submitted  to  the  court. 

Upon  consideration  thereof,  it  is  ordered  and  adjudged  by  me  that 

said  E.  F.,  of  the  village  of  ,  county,  Nebraska,  be  and 

he  hereby  is  granted  permission  to  bring  suit  upon  the  bond  of  C.  D. 
as  administrator  of  the  estate  of  A.  B.,  deceased,  and  that  a  certified 
copy  of  said  bond  be  delivered  to  said  E.  F. 

(Signed)     J.  K., 
County  Judge. 

(777) 


§  467  TEOBATE  AND  ADMINISTRATION.  [Chap.  34 

Form  No.  205. 
CERTIFICATE  OF  PEBMISSION  TO  BEING  SUIT  ON  BOND. 

State  of  Nebraska, 
— i County, — as. 

I,  J.  K.,  county  judge  of  said  county,  do  hereby  certify  that  the 
within  and  foregoing  is  a  true  copy  of  the  bond  of  C.  D.,  adminis- 
trator of  the  estate  of  A.  B.,  deceased,  now  on  file  in  the  county  court 
of  said  county;  and  I  do  further  certify  that  on  the  —  -  day  of 

,  19 — ,  permission  was  granted  by  said  court  to  E.  F.,  of  the 

village  of ,  said  county,  to  prosecute  said  bond. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused  the 
seal  of  said  court  to  be  affixed  this  day  of ,  19 — . 

[Seal]  (Signed)     J.  K., 

County  Judge. 

The  Oregon  statute  does  not  require  that  permission 
be  first  obtained  from  the  county  court  before  bringing 
suit  on  the  bond,  as  is  the  case  in  many  states.  The 
object  of  such  statutes  is  to  prevent  such  suits  being 
brought  prematurely.  When  permission  is  not  a  statu- 
tory requirement  and  there  are  no  special  proceedings 
for  enforcing  probate  bonds,  an  order  granting  leave 
is  not  necessary.64 

§  467.  Time  within  which  the  action  may  be  brought. 
An  action  on  the  bond  of  an  executor  or  adminis- 
trator may  be  brought  within  any  time  within  ten 
years  after  the  cause  of  action  accrued.65  It  accrues 
when  the  party  has  the  right  to  apply  to  the  county 
court  for  permission  to  bring  the  action.  Obtaining 
leave  to  sue  on  the  bond  is  no  part  of  the  cause  of  ac- 
tion thereon,  and  delay  in  obtaining  such  leave  does 
not  affect  the  running  of  the  statute.66  The  suit  may 

64  Bartels  v.  Grove,  4  Wash.  632,  30  Pac.  675;  State  v.  Wilson,  38 
Md.  338. 

«5  Code  Civ.  Proc.,  §  12;  Bently  v.  Baker,  61  Neb.  92,  64  N.  W.  603. 
66  Ganser  v.  Ganser,  83  Minn.  199,  86  N.  W.  18. 

(778) 


.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  468 

therefore  be  brought  at  any  time  within  ten  years  after 
the  executor  or  administrator  has  failed  to  pay  the 
creditors,  legatees  or  distributees,  or  comply  with  the 
order  of  the  court.67 


In  Oregon  the  limitation  is  six  years.68 

§  468.    Liability  of  sureties. 

The  liability  of  the  sureties  on  an  executor's  or  ad- 
ministrator's bond  is  limited  to  the  terms  of  the  instru- 
ment, and  cannot  be  extended  by  operation  of  law  or 
by  implication.69  They  are  only  liable  for  a  breach  of 
the  conditions  of  the  instrument  they  actually  sign. 
They  are  responsible  for  all  the  assets  of  the  estate 
which  have  come  into  the  official  possession  of  the  per- 
sonal representative  within  this  state,70  and  for  the 
proceeds  of  assets  in  another  state  which  have  been 
transmitted  to  him,  and  with  which  he  has  been  prop- 
erly charged;71  but  the  sureties  of  an  ancillary  ad- 
ministrator appointed  in  this  state  are  not  liable  for 
the  assets  of  the  estate  in  another  state.  Their  lia- 
bility is  limited  to  the  assets  within  the  jurisdiction 
in  which  their  principal  received  his  appointment.72 
The  bond  is  retrospective,  and  therefore  covers  assets 

67  Williams  v.  State,  68  Miss.  680,  10  South.  52;  Kennedy  v.  Crom- 
well, 108  N.  C.  1,  13  S.  E.  135. 

68  L.  O.  L.,  §  6. 

69  Warfield  v.  Brand's  Admr.,  13  Bush   (Ky.),  77;  White  v.  Ditson, 
140  Mass.  351,  4  X.  E.  606. 

70  Gregg  v.  Currier,  36  X.  H.  200;  Fletcher's  Admr.  v.  Sanders,  7 
Dana   (Ky.),  345;  Governor  v.  Williams,  25  N.  C.  152;  Verret  v.  Bel- 
anger,  6  La.  Ann.  109;  Goode  v.  Buford,  14  La.  Ann.  102;  Bowling  v. 
Feeley,  72  Ga.  557. 

71  Judge  of  Probate  v.  Heydock,  8  X.  H.  491. 

72  Fletcher's  Admr.  v.  Sanders,  7  Dana  (Ky.),  345. 

(779) 


§  468  PROBATE  AND  ADMINISTRATION.  [Chap.  34 

which  may  have  come  into  the  representative's  posses- 
sion before  its  execution,  such  goods  being  properly 
included  in  the  inventory.73 

Should  an  executor  be  appointed  trustee  by  the  will, 
he  should  give  a  bond  as  trustee  in  addition  to  his  bond 
as  executor,  the  duties  of  the  two  offices  being  entirely 
distinct  and  separate.74  Should  he  neglect  to  give  a 
bond  as  trustee,  he  is  chargeable  on  his  executor's  bond 
with  the  amount  of  the  trustee  property  in  his  hands, 
the  clause  of  the  bond,  "to  administer  according  to  the 
will  of  the  testator,"  making  his  sureties  liable  for  the 
assets  should  he  convert  or  misappropriate  them.75 
The  liabilities  of  the  sureties  on  the  executor's  bond, 
when  he  is  also  trustee,  continue  until  he  shall  account 
as  executor  and  qualify  as  trustee.  There  must  be 
some  open  and  notorious  act  done  by  him,  whereby  it  is 
known  that  the  line  has  been  crossed  which  separates 
the  capacity  of  executor  from  that  of  trustee.76  Should 
an  executor,  after  the  setting  aside  of  the  will,  con- 
tinue in  charge  of  the  estate  as  administrator  without 
giving  any  other  bond  than  his  executor's  bond,  the 
sureties  on  such  bond  will  be  liable  for  the  faithful  per- 
formance of  his  duties  as  administrator.77  If  he  has 
distributed  the  assets  in  good  faith,  pursuant  to  the 

73  Scofield  v.  Churchill,  72  N.  Y.  565;  Choate  v.  Arrington,  116  Mass. 
552;  State  of  Creusbauer,  68  Mo.  254;  Brown  v.  State,  23  Kan.  235. 

74  Groton  v.  Ruggles,  17  Me.  137;  Wyman  v.  Hubbard,  13  Mass.  234. 

75  Hall  v.  Cashing,  9  Pick.   (Mass.)   397;  Briggs  v.  Baptist  Church 
(Me.),  8  Atl.  257;  Newcomb  v.  Williams,  9  Met.  (Mass.)  525. 

76  Joy  v.  Elton,  9  N.  D.  428,  83  N.  W.  875;  In  re  Higgins'  Estate, 
15  Mont.  474,  39  Pac.  506;  Bellinger  v.  Thompson,  26  Or.  320,  37  Pac. 
714;  Newcomb  v.  Williams,  9  Met.  (Mass.)  525;  State  v.  Branch,  134 
Mo.  592,  36  S.  W.  226. 

77  Bell  v.  People,  94  111.  230. 

(780) 


Chap.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  468 

directions  of  the  court,  in  the  payment  of  debts  and 
legacies,  the  subsequent  annulment  of  the  will  will 
not  render  the  sureties  liable  for  the  payments  so 
made.78 

Where  letters  of  administration  were  granted  upon 
the  estate  of  a  person  supposed  to  be  dead,  but  who  was 
in  fact  living,  and  the  administrator  disposed  of  the 
estate  to  the  creditors  and  heir  apparent,  it  was  held 
that  his  bondsmen  were  liable  to  the  supposed  decedent 
for  his  property  which  the  administrator  had  dis- 
posed of.79 

The  liability  of  the  bondsmen  for  the  debt  of  an  in- 
solvent representative  to  the  estate  is  measured  by  his 
liability.  They  cannot  be  called  upon  to  pay  a  debt 
which  would  be  wholly  or  partially  uncollectible  were 
he  not  such  representative,80  nor  are  they  released  from 
paying  such  portion  as  he  had  the  means  to  pay  during 
administration,81  and  if  he  has  charged  himself  with 
the  full  amount  of  his  debt,  equity  will  relieve  his 
sureties  to  the  extent  of  his  inability  to  pay.82 

Under  the  Oregon  practice,  the  liability  of  the  bonds- 
men in  such  cases  in  an  action  by  a  creditor  covers 
the  full  amount  of  the  indebtedness,  and  fraud  of  the 
executor  in  concealing  from  them  the  knowledge  of 
his  insolvency  is  no  defense.83 

78  Jones'  Exr.  v.  Jones,  14  B.  Mon.  (Ky.)  373. 

79  Williams  v.  Kiernan,  25  Hun  (N.  Y.),  355. 

80  Baucus  v.  Barr,  5  Hun   (N.  Y.),  582;  McCarty  v.  Frazer,  62  Mo. 
263. 

81  Kader  v.  Yeargin  (Tenn.),  3  S.  W.  178;  Judge  of  Probate  v.  Sul- 
loway,  68  N.  H.  511,  44  Atl.  720. 

82  Harker  v.  Trick,  10  N.  J.  Eq.  369. 

83  United  Brethren   v.   Aikin,  45   Or.  247,   77   Pac.   248. 

(781) 


§§469,470      PROBATE    AND    ADMINISTRATION.          [Chap.  34 

§  469.    Liability  in  regard  to  real  estate. 

As  the  personal  representative  is  entitled  to  posses- 
sion of  real  estate  pending  administration,  when  he 
takes  charge  of  it,  the  bondsmen  would  become  liable 
for  the  rents  and  profits  received  therefrom  by  him,84 
and  for  failure  to  rent  the  property  and  keep  the  build- 
ings in  repair.85  They  are  not  liable  for  rents  collected 
by  him  after  his  removal  from  office.86 

The  bondsmen  of  executors  and  administrators  de 
bonis  non  with  the  will  annexed  are  liable  for  moneys 
arising  from  sales  of  real  estate  made  pursuant  to  the 
terms  of  wills,87  on  the  principle  that  whatever  is  re- 
quired to  be  converted  into  personalty  is  considered 
as  personalty  and  must  be  so  accounted  for.88  In 
Rhode  Island  his  bondsmen  are  not  liable.89 

The  bondsmen  have  been  held  liable  for  a  loss  sus- 
tained by  the  estate  caused  by  a  needless  delay  in  mak- 
ing a  sale  of  real  estate  for  payment  of  debts  under 
order  of  the  court.90 

§  470.    Liability  for  proceeds  of  sales  of  real  estate 
under  order  of  court. 

The  special  bond  which  the  district  court  may  re- 
quire of  an  executor  or  administrator  on  sale  of  lands 
for  payment  of  debts  is  subsidiary  to  the  first,  and 

84  May  v.  Kelley,  61  Ala.  489;  Strong  v.  Wilkson,  14  Mo.  116. 

85  See  §  219,  supra. 

86  Brooks  v.  Jackson,  125  Mass.  307. 

87  Zeigler  v.  Sprenkle,  7  Watts  &  S.   (Pa.)    178;   Commonwealth  v. 
Forney,  3  Watts  &  S.  (Pa.)  356;  Simpson  v.  Kelao,  8  Watts  (Pa.),  252. 

88  Craig  v.  Leslie,  3  Wheat.  (U.  S.)  563. 

89  Probate  Court  v.  Hazard,  13  R.  I.  3. 
so  Stratton  v.  McCandless,  27  Kan.  296. 

(782) 


Chap.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  471 

limits  the  liability  of  its  sureties  to  the  proceeds  of 
the  sale.91  As  far  as  such  proceeds  are  concerned,  it 
is  a  cumulative  bond.92 

For  failure  to  account  for  such  proceeds  the  rule  is 
that  an  action  will  lie  on  either  or  both  bonds,  and 
that  it  is  not  necessary  to  first  exhaust  the  administra- 
tion bond  before  bringing  action  on  the  second  bond.93 

§  471.    Action  on  the  bond. 

The  petition  on  the  bond  of  an  executor  or  adminis- 
trator must  set  up  its  execution  and  approval,94  all  the 
steps  taken  to  fix  the  liability  of  the  principal,  his 
neglect  or  refusal  to  comply  with  the  judgment  or 
order  of  the  court,  and  the  granting  of  permission  by 
the  county  judge  to  bring  the  action.95  An  objection 
that  permission  of  the  county  court  was  not  obtained 
may  be  taken  advantage  of  by  plea  in  abatement.96 

The  bondsmen  are  bound  by  the  recitals  in  the 
bond.97  They  are  estopped  from  denying  the  legality 
of  the  appointment  of  their  principal  and  from  setting 
up  any  defense  which  is  in  the  nature  of  an  objection 

»1  Worgang's  Admr.  v.  Clipp,  21  Ind.  119. 

»2  White  v.  Schaberg,  131  Mich.  319,  91  N.  W.  168. 

93  White  v.  Schaberg,  131  Mich.  319,  91  N.  W.  168;  Durfee  v.  Joslyn, 
92  Mich.  211,  52  N.  W.  626.     The  Michigan  and  Nebraska  statutes  on 
this  matter  are  the  same. 

94  Jeffree  v.  Walsh,  14  Nev.  143. 

95  Stratton  v.  McCandless,  27  Kan.  296;   Slagle  v.  Entrekin,  44  Ohio 
St.  637,  10  N.  E.  675;  Tucker  v.  People,  87  111.  76;  Johannes  v.  Youngs, 
45  Wis.  445. 

96  Johannes  v.  Youngs,  45  Wis.  445. 

97  Thompson  v.  Rush,  66  Neb.  758,  92  N.  W.  1060;  Fridge  v.  State, 
3  Gill  &  J.  (Md.)  114. 

(783) 


§  471  PKOBATE   AND    ADMINISTRATION-  [Chap.  34 

to  their  own  acts.98  Their  liability  is  coextensive 
with  that  of  their  principal.  As  long  as  there  remains 
any  duty  which  he  is  legally  liable  to  perform,  so  long 
the  obligation  of  the  bond  remains." 

They  are  in  privity  with  their  principal,  bound  by 
any  decree  of  the  court  which  binds  him  and  estopped 
from  questioning  the  order  directing  payment  to  a 
creditor,  heir  or  legatee  of  the  amount  due  him,100  un- 
less the  court  was  without  jurisdiction  in  making  the 
order.101 

The  liability  does  not  end  with  the  discharge  of  the 
executor  or  administrator.  If  the  decree  approving 
his  final  account  is  set  aside  for  fraud  or  other  cause, 
the  liability  of  the  bondsmen  is  revived  and  the  bonds- 
men held  as  though  no  discharge  had  been  entered.102 

If  the  preliminary  proceedings  have  been  regular 
and  in  compliance  with  the  law,  about  the  only  de- 
fense open  to  the  bondsmen  is  fraud.  They  may  show 

98  Johnson  v.  Smith,  25  Hun  (N.  Y.),  171;  Williamson  v.  Woodman, 
72  Me.  163;  Nash  v.  Sawyer,  114  Iowa,  742,  87  N.  W.  707;  State  v. 
Mills,  82  Ind.  126. 

»9  Wattles  v.  Hyde,  9  Conn.  19;  Alexander  v.  Bryan,  110  U.  S.  414, 
4  Sup.  Ct.  Rep.  107. 

100  Stovall  v.  Banks,  10  Wall.  (U.  S.)  583;  Irwin  v.  Backus,  25  Cal. 
114;  Casoni  v.  Jerome,  58  N.  Y.  315;  Deobold  v.  Oppermann,  111  N.  Y. 
531,  19  N.  E.  94;   Towle  v.  Towle,  46  N.  H.  431;  Weber  v.  Noth,  51 
Iowa,  375,  1  N.  W.  652;  Garber  v.  Commonwealth,  7  Pa.  265;  Hobbs 
v.  Middleton,  1  J.  J.  Marsh.  (Ky.)   177;  Scofield  v.  Churchill,  72  N.  Y. 
565;  Ealston  v.  Wood,  15  111.  159. 

101  Bobbins  v.  Burridge,  128  Mich.  25,  87  N.  W.  93. 

102  Tucker  v.  Stewart,  147  Iowa,  294,  126  N.  W.  183.     In  the  above 
case  a  final  decree  was  set  aside  for  fraud  fourteen  years  after  it  was 
entered.     The  judgment  of  the  lower  court  was  for  the  bondsmen,  and 
it  was  reversed  by  the  supreme  court.     A  bondsman  cannot  be  sure 
that  he  is  released  from  liability  until  the  statute  of  limitations  has 
run. 

(784) 


Chap.  34]       ENFORCEMENT   OF   PBOBATE    BONDS.  §  471 

that  their  signatures  were  obtained  by  means  of  fraud- 
ulent acts,  misrepresentations  or  devices  on  the  part  of 
their  principal,103  provided  they  have  not,  by  their  own 
negligence,  become  estopped  from  denying  the  execu- 
tion or  validity  of  the  bond  as  against  the  creditors 
or  other  beneficiaries  of  the  estate.104  They  may  also 
show  that  the  decree  or  order  of  the  county  court  fix- 
ing their  liability  was  obtained  by  fraud  or  collu- 
sion;105 or  that  the  liability  which  the  bond  was  in- 
tended to  secure  was  itself  barred  by  the  statute  of 
limitations.106  The  recovery  of  the  plaintiff  is  limited 
to  the  amount  which  the  court  found  to  be  due  him 
from  the  executor  or  administrator,  and  which  the 
court  ordered  paid.107 

Form  No.  206. 

PETITION  BY  CREDITOR  AGAINST  SURETIES  ON  EXECUTOR'S 

BOND. 

In  the  District  Court  of  County,  Nebraska. 

L.  M.,  Plaintiff,  vs.  C.  D.,  E.  F.,  and  G.  H.,  Defendants. 

The  plaintiff  complains  of  the  defendants,  and  for  cause  of  action 

alleges,  that  on  the  day  of  ,  19 — ,  said  defendant  C.  D., 

as  principal,  and  E.  F.  and  G.  H.,  as  sureties,  executed  and  delivered 
to  the  county  judge  of  said  county  their  certain  bond  in  the  words 

and  figures  following  [insert  copy  of  bond];  that  on  the  day 

of  ,  19 — ,  said  bond  was  approved  by  said  county  judge,  and 

103  Campbell  v.  Johnson,  41  Ohio  St.  538. 

104  Engstad  v.  Syverson,  72  Minn.  188,  75  N.  W.  125. 

105  Williamson  v.  Howell,  4  Ala.  693;  Weber  v.  Noth,  51  Iowa,  375, 
1  N.  W.  652;  Irwin  v.  Backus,  25  Cal.  214;  Heard  v.  Lodge,  20  Pick. 
(Mass.)  53;  Stovall  v.  Banks.  10  Wall.  (U.  S.)  583. 

106  Biddle  v.  Wendell,  37  Mich.  452. 

107  Harrison  v.  Clark,  87  N.  Y.  572;  Casoni  v.  Jerome,  58  N.  Y.  315; 
Sea  well  v.  Buckley's  Distributees,  54  Ala.  592;  State  v.  Holt,  27  Mo. 
340;  Probate  Court  v.  Matthews,  6  Vt.  269. 

50— Pro.  Ad. 


§  471  PROBATE  AND   ADMINISTRATION.          [Chap.  34 

filed  in  said  county  court,  and  thereupon  letters  testamentary  upon 
the  estate  of  said  A.  B.,  deceased,  issued  out  of  and  under  the  seal  of 
said  court  to  said  C.  D.,  appointing  him  executor  of  the  estate  of  said 
A.  B.,  deceased. 

Second.     That  on  the  day  of  ,  19 — ,  plaintiff  filed  a 

claim  against  said  estate  of  said  A.  B.  with  the  county  judge  of  said 

county,  and  which   said  claim   or  demand  was  on  the  day  of 

,  19 — ,  allowed  by  said  county  judge  in  the  sum  of  —     —  dollars 

($ ) ;  that  on  the  day  of  ,  19 — ,  a  decree  of  said 

court  was  entered  ordering  and  directing  said  C.  D.,  executor  as  afore- 
said, to  pay  to  plaintiff  said  sum  of dollars  ($ ),  and  that 

plaintiff  thereupon  and  on  the  date  last  aforesaid  demanded  of  said 

C.  D.,  as  executor  as  aforesaid,  said"  sum  of  dollars  ($ ), 

and  the  said  C.  D.  refused  to  pay  the  same,  and  no  part  of  said  sum 
has  been  paid  to  this  plaintiff. 

Third.     That  on  the  day  of ,  19 — ,  plaintiff  made  ap- 
plication to  the  county  court  of  said  county  for  leave  to  bring 

an  action  on  the  bond  of  said  C.  D.,  as  executor,  and  that  on  the  date 
last  aforesaid  a  certified  copy  of  such  bond,  with  a  certificate  of  per- 
mission to  bring  suit  indorsed  thereon  in  the  words  and  figures  fol- 
lowing [copy  certificate],  was  delivered  to  plaintiff. 

Fourth.     That  there  is  therefore  now  due  from  the  defendants  to 

the  plaintiff  the  sum  of  dollars,  with  interest  thereon  from  the 

day  of  ,  19 —  [date  of  allowance  of  claim  or  order  of 

payment  in  case  no  interest  was  to  be  paid  on  claims  from  date  of  their 
allowance]. 

Plaintiff  therefore  prays  judgment  against  the  defendants  for  the 

sum  of dollars  ($ ),  with  interest  thereon  from  the 

day  of ,  19 — ,  and  costs  of  suit. 

(Signed)     L.  M., 
By  E.  J.  S.,  His  Attorney. 

[Add  verification,  Form  No.  5.] 

Form  No.  207. 
PETITION  FOB  CONVERSION. 

In  the  District  Court  of County,  Nebraska, 

L.  M.,  Plaintiff,  vs.  C.  D.,  E.  F.,  and  G.  H.,  Defendants. 

The  plaintiff  complains  of  the  defendants,  and  for  cause  of  action 

alleges,  that  A.  B.,  late  of  county,  Nebraska,  departed  this 

life  in  said  county  on  the day  of ,  19 — ,  intestate;  that 

(786) 


Chap.  34]       ENFORCEMENT  OF  PROBATE  BONDS.  §  472 

on  the  day  of  ,  19 — ,  said  C.  D.,  as  principal,  and  E.  F. 

and  G.  H.,  as  sureties,  executed  and  delivered  to  the  county  judge  of 
said  county  their  certain  bond  in  the  words  and  figures  following 

[insert  copy  of  bond] ;  that  on  the  day  of  ,  19 — ,  said 

bond  was  approved  by  said  county  judge  and  filed  in  said  county  court, 
and  thereupon  letters  of  administration  upon  the  estate  of  said  A.  B., 
deceased,  issued  out  of  and  under  the  seal  of  said  court  to  said  C.  D., 
appointing  him  administrator  of  the  estate  of  said  A.  B.,  deceased. 

Second.  That  said  C.  D.  thereupon  entered  on  his  said  administra- 
tion, and  collected  a  large  amount  of  assets  belonging  to  said  estate. 

Third.  The  following  described  goods  and  chattels:  One  promissory 

note  executed  by  X.  Y.  to  said  A.  B.  for  the  sum  of  dollars, 

dated  ,  19 — ,  due  ,  19 — ;  twenty-four  head  of  three-year- 
old  steers,  branded  "V"  on  right  shoulder,  said  brand  being  registered 

in  the  office  of  the  county  clerk  of  county,  Nebraska,  as  the 

brand  of  said  A.  B.  [describe  as  particularly  as  possible  all  the  goods, 
chattels,  credits,  and  effects  of  the  estate  which  plaintiff  claims  came 
into  the  possession  of  the  administrator,  and  which  are  not  included 
in  the  inventory], — belonging  to  said  estate,  came  into  the  possession 
of  the  said  C.  D.,  administrator,  which  said  above-described  assets  the 
said  C.  D.,  administrator,  neglected  and  refused  to  return  in  the  in- 
ventory of  property  belonging  to  said  estate,  but  has  converted  the 
same  to  his  own  use,  and  has  wholly  neglected  and  refused  to  account 
for  the  same,  either  in  his  accounts  or  settlement  in  said  county  court. 

Fourth.  That  plaintiff  is  one  of  the  legal  heirs  and  distributees  of 
said  estate. 

Fifth.  That  on  the  day  of  ,  19 — ,  plaintiff  made  ap- 
plication to  the  county  court  of  said  county  for  leave  to  bring  an  action 
on  the  bond  of  said  C.  D.,  administrator,  and  that  on  the  date  last 
aforesaid  a  copy  of  said  bond,  with  the  certificate  of  permission  in- 
dorsed thereon,  was  delivered  by  said  county  court  to  this  plaintiff. 
The  following  is  a  copy  of  said  certificate:  [Copy  certificate.] 

Sixth.  That  plaintiff  has  sustained  damages  by  reason  of  the  wrong- 
ful conversion  of  said  property  in  the  sum  of dollars. 

[Add  prayer  for  relief  as  in  Form  No.  206.] 

§  472.    Action— When  barred. 

Whenever  an  action  is  rightfully  brought  by  any 
creditor,  heir  at  law,  next  of  kin  or  legatee  pursuant 
to  the  provisions  of  the  statutes  regulating  suits  on 

.(787) 


§  472  PEOBATE  AND  ADMINISTRATION.  [Chap.  34 

executors'  and  administrators'  bonds,  the  same  shall, 
so  far  as  the  causes  of  action  therein  are  concerned,  be 
a  bar  to  any  other  cause  of  action  which  might  have 
accrued  under  the  statutes  regulating  suits  on  bonds, 
but  no  further;  nor  shall  such  bar  arise  from  the  failure 
of  any  creditor,  heir  at  law,  next  of  kin,  legatee  or 
devisee  to  bring  an  action  after  the  same  shall  have 
accrued,  and  before  the  appointment  of  an  adminis- 
trator.108 

108  Eev.  Stats.,  c.  17,  §  261,  [1525], 

(788)i 


CHAPTER  XXXV. 

APPEALS  AND  PROCEEDINGS  IN  ERROR. 

§  473.  Review  of  Judgments  and  Decrees. 

474.  Parties  to  Appeal  or  Proceedings  in  Error. 

475.  Appealable  Orders. 

476.  Appeals  by  Personal  Representatives. 

477.  Appeals  by  Other  Parties. 

478.  Appeals  by  Other  Parties  from  Decrees  Adverse  to  the  Estate. 

479.  Transcript. 

480.  Administration  Pending  Appeals. 

481.  Proceedings  in  Appellate  Court. 

482.  Failure  to  Perfect  Appeals. 

483.  Order  or  Decree  of  District  Court. 

484.  Writs  of  Error. 

485.  Procedure. 

486.  Supersedeas  Bond. 

487.  Summons  in  Error. 

488.  Hearing  in  District  Court. 

489.  Judgment  of  District  Court  in  Error  Proceedings. 

§  473.    Review  of  judgments  and  decrees. 

Final  orders,  judgments  and  decrees  of  the  county 
court  in  probate  and  guardianship  proceedings  may 
be  appealed  to  the  district  court  of  the  county  in  which 
the  decision  was  rendered.1  A  writ  of  error  also  lies 
to  the  district  court  to  bring  to  that  court  for  review 
jurisdictional  or  prejudicial  errors  appearing  on  the 
face  of  the  record.2  The  procedure  on  probate  appeals 
is  -governed  by  statutes  differing  largely  from  the  sec- 
tions of  the  code  governing  appeals  to  a  higher  court. 
As  in  the  case  of  appeals  from  justice  court,  the  case 
or  proceeding  is  tried  anew  on  substantially  the  same 
pleadings  as  in  the  county  court. 

1  Rev.  Stats.,  c.  17,  §  262,  [1526]. 

2  Civ.  Code,  §  617;  Rogers  v.  Reddick,  10  Neb.  352,  6  N.  W.  413. 

(789) 


§  474  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

In  Oregon  appeal  lies  from  the  county,  to  the  cir- 
cuit court  on  all  final  decisions  of  the  court  of  pro- 
bate,3 as  does  also  the  writ  of  review,  which  is  sub- 
stantially the  same  as  the  Nebraska  writ  of  error,  or 
certiorari  at  common  law.4  The  general  provisions  of 
the  code,  chapter  V  or  title  VII,  for  appeals  from  a 
lower  to  a  higher  court,  govern  appeals  to  the  circuit 
court,  with  the  exception  that  appeals  from  judgments 
are  tried  anew  before  a  jury,  and  those  from  orders 
and  decrees  are  heard  on  the  transcript  and  the  evi- 
dence before  the  lower  court.6  There  are  a  number  of 
matters  of  practice  which  are  confined  to  appeals  from 
the  county  to  the  circuit  court. 

§  474.    Parties  entitled  to  appeal  or  to  proceedings  in 
error. 

Many  of  the  decisions  of  the  county  court  in  probate 
and  administration  matters  are  strictly  in  rem,  with  no 
adverse  party,  so  that  the  rule  governing  the  right  of 
a  party  to  a  civil  action  to  appeal  does  not  apply.  Any 
person  affected  by  the  order,  judgment  or  decree  com- 
plained of  is  a  proper  appellant  or  plaintiff  in  error. 

The  test  of  the  right  is,  does  the  order  or  decree 
complained  of  operate  directly  upon  the  vested  or  con- 
tingent rights  of  the  party;  does  it,  in  any  manner, 
increase  or  diminish  the  value  of  his  right  or  interest 
in  any  part  of  the  estate.6  Under  this  rule  the  sur- 

3  L.  O.  L.,  §  945. 

4  Garnsey  v.  County   Court,  33  Or.  205,  54  Pac.   1089;  Farrow  v. 
Nevin,  44  Or.  496,  75  Pac.  711. 

5  L.  O.  L.,  §  945. 

«  Cowherd  v.  Kitchen,  57  Neb.  426,  77  N.  W.  1107;  Edney  v.  Baum, 
59  Neb.  147,  80  N.  W.  502;  Missouri  Pac.  Ry.  Co.  v.  Jay,  53  Neb.  747, 
74  N.  W.  259;  Deering  v.  Adams,  34  Me.  401;  Bryant  v.  Thompson,  128 
N.  Y.  426,  28  N.  E.  522;  In  re  Estate  of  Wright,  49  Cal.  550. 

(790) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  ERROB.          §  475 

viving  husband  or  wife,  an  heir,  legatee  or  devisee, 
an  executor  or  administrator,  may  appeal  from  any 
judgment  or  order  which  is  adverse  to  the  estate,7  and 
a  creditor  from  the  order  allowing  the  demand  of 
another  creditor.8 

An  executor  or  administrator  is  a  proper  appellant 
in  his  representative  capacity  only  from  such  final 
decisions  as  affect  the  estate  as  a  whole,  and  not  those 
which  only  reach  the  right  or  interest  of  a  person  or 
class.  If  property  is  given  him  in  trust,  he  has  such 
an  interest  in  it  as  makes  him  a  proper  appellant  from 
any  order  which  the  court  may  make  concerning  it.9 
He  is  not  a  proper  appellant  from  a  final  order  of  dis- 
tribution.10 Legatees  cannot  appeal  from  an  order 
which  does  not  affect  their  interests,11  nor  can  any 
party  from  a  matter  to  which  he  expressly  consented 
in  open  court.12 

§  475.    Appealable  orders. 

Any  judgment  or  order  or  decree  of  the  county  court 
which  is  a  final  decision  on  actual,  vested  or  contingent 
interests  is  subject  to  appeal  to  the  district  court.13 

7  Rev.  Stats.,  c.  17,  §  264,  [1528],  §  263,  [1527]. 

8  Rev.  Stats.,  c.  17,  §  271,  [1535]. 

»  In  re  Creighton's  Estate,  91  Neb.  654;  136  N.  W.  1001. 

10  Merrick  v.  Kennedy,  46  Neb.  264,  64  N.  W.  989. 

11  Cowherd  v.  Kitchen,  57  Neb.  426,  77  N.  W.  1107. 

12  In  re  Whitom's  Estate,  86  Neb.  367,  125  N.  W.  606.     As  to  who 
are  entitled  to  appeal  from  a  decree  admitting  or  refusing  to  admit  a 
will  to  probate,  see  §  84,  supra. 

13  In  re  Estate  of  Gilbert,  104  N.  Y.  200;  Ferguson's  Admr.  v.  Car- 
son's Admr.,  86  Mo.  673;  Peeper  v.  Peeper,  53  Wis.  507,  10  N.  W.  604; 
Spitley  v.  Frost,  15  Fed.  299. 

(791) 


§  475  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

Interlocutory  orders  are  not  appealable,  but  may  be 
questioned  in  the  appeal  from  the  final  order  to  which 
they  led.14 

An  order  appointing  a  special  administrator  is  not 
subject  to  review,15  for  to  do  so  would  defeat  the  pur- 
pose of  the  appointment,  but  an  order  removing  a 
special  administrator  and  appointing  another  in  his 
place  is  appealable.16 

An  order  determining  that  a  certain  payment  was 
not  a  gift  causa  mortis  and  directing  the  party  claim- 
ing as  donee  and  who  was  a  former  administrator  to 
turn  over  the  same  to  his  successor  is  final,17  as  is  also 
the  decree  or  order  entered  in  the  hearing  on  a  petition 
to  set  aside  an  order  barring  claims  against  an  estate,18 
or  an  order  refusing  to  reopen  the  decree  allowing  the 
final  account.19 

There  are  many  other  orders  or  decrees  of  the 
county  court  which  are  subject  to  review  by  a  higher 
court  and  have  been  mentioned  in  former  chapters. 

Orders  extending  the  time  for  the  payment  of  debts 
or  presentation  of  claims,  granting  or  refusing  to  grant 
a  continuance  of  any  hearing,  are  interlocutory  in  their 
character,  matters  of  discretion,  and  are  not  considered 
subject  to  either  appeal  or  error. 

14  Webb  v.  Stillman,  26  Kan.  371;  Lutz  v.  Christy,  67  Cal.  457,  8  Pac. 
39;  Hodges  v.  Thacher,  23  Vt.  455;  Felton  v.  Sowles,  57  Vt.  382. 

15  Cadman  v.  Richards,  13  Neb.  384. 

i«  In  re  Estate  of  Pope,  75  Neb.  550,  106  N.  W.  659; 

17  Foster  v.  Murphy,  76  Neb.  576,  107  N.  W.  843. 

18  Ribble  v.  Furmin,  69  Neb.  38,  94  N.  W.  967. 
i»  Martin  v.  Long,  53  Neb.  694,  74  N.  W.  43. 

(792) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  EBROB.          §  476 

§  476.    Appeal  by  a  personal  representative. 

All  appeals  must  be  taken  within  thirty  days  after 
the  decision  complained  of  is  made.20  An  executor, 
administrator,  guardian  or  guardian  ad  litem  appeals 
by  filing  notice  thereof  within  the  required  time  in  the 
county  court  and  paying  the  fee  for  a  transcript.  No 
bond  is  required  of  them,21  and  no  notice  to  the  adverse 
party  need  be  given.22  The  district  court  has  jurisdic- 
tion to  determine  whether  the  appellant  should  give 
bonds  and  if  it  finds  that  the  appeal  was  taken  by  the 
representative  in  his  personal  capacity,  it  should  be  dis- 
missed.23 No  bond  is  required  of  an  executor  who  has 
given  a  bond  as  residuary  legatee.24 

Form  No.  208. 

NOTICE  OF  APPEAL  BY  EXECUTOR  OR  ADMINISTRATOR. 
[Title  of  Cause  and  Court.] 

Notice  is   hereby  given  that  C.  D.,  administrator  of  the  estate  of 
said  A.  B.,  hereby  appeals  to  the  district  court  of  said  county  from  an 

order  of  said  county  court  made  and  entered  on  the  day  of 

,    19 — ,   allowing   a    claim    against    said   estate   in    the    sum    of 

$ ,  and  requests  that  a  transcript  of  the  proceedings  of  the  court 

in  said  matter  be  filed  in  said  district  court  within  the  time  provided 
by  law. 

Dated  this day  of ,  19 — . 

(Signed)     C.  D., 
Administrator  of  Estate  of  A.  B. 

Under  the  Oregon  practice,  a  party  desiring  to  ap- 
peal to  the  circuit  court  may  give  notice  in  open  court, 
or  before  the  judge  thereof  if  at  chambers,  that  he  ap- 

20  Rev.  Stats.,  c.  17,  §  263,  [1529] ;  L.  O.  L.,  §  550,  subd.  5. 

21  Rev.  Stats.,  c.  17,  §§  264,  266,  [1528],  [1529]. 

22  Bazzoo  v.  Wallace,  16  Neb.  293,  20  N.  W.  314. 

23  Rhea  v.  Brown,  4  Neb.  Unof.  461,  94  N.  W.  716. 

24  Thompson  v.  Pope,  77  Neb.  338,  109  N.  W.  498. 

(793) 


§  476  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

peals  from  the  decision,  order,  judgment  or  decree  to 
the  circuit  court  of  the  county,  at  the  time  the  same  is 
entered.  Such  notice  must  be  entered  on  the  records 
of  the  court.  If  notice  is  not  given  at  the  time  the 
order  or  decree  is  made,  the  appellant  may,  within 
thirty  days  from  its  entry,  serve  a  notice  on  the  adverse 
party  or  parties,  or  his  or  their  attorney,  at  any  place 
in  the  state.  Such  notice  must  contain  the  title  of 
the  cause,  the  names  of  the  parties,  and  notify  the 
adverse  party  or  his  attorney  that  an  appeal  is  taken 
to  the  circuit  court  from  the  judgment,  order  or  decree, 
or  some  part  thereof.25  It  is  not  necessary  to  set  out 
the  decree  in  full  or  even  its  substance,  but  it  must  be 
sufficient  to  advise  the  adverse  party  of  the  particular 
act  of  the  court  from  which  the  party  appeals.26 

Notice,  either  made  orally  on  the  date  of  the  entry 
of  the  judgment  or  order,27  or  in  writing,  in  due  form 
and  served  on  the  adverse  party  or  his  attorney,  is 
necessary  to  give  the  circuit  court  jurisdiction.  It 
cannot  be  waived  by  stipulation.28 

The  county  court  or  judge  thereof,  may  in  his  dis- 
cretion permit  an  appeal  by  an  executor,  administrator 
or  guardian  without  the  giving  of  an  undertaking  or 
merely  giving  an  undertaking  for  the  costs.  All  other 
appellants  are  required,  within  ten  days  from  the  giv- 
ing of  notice  or  service  of  notice  of  appeal,  to  cause 
to  be  served  on  the  adverse  party  an  undertaking  with 
one  or  more  sureties  to  pay  all  damages,  costs  and  dis- 
bursements awarded  against  him  on  the  appeal,  and 
in  order  to  operate  as  a  stay  it  must  further  provide 
that  he  will  satisfy  any  judgment  or  decree  rendered 

25  L.  O.  L.,  §  550,  subd.  1. 

26  Christian  v.  Evans,  5  Or.  254;  Crawford  v.  Wist,  26  Or.  596,  39 
Pac.  218. 

27  Barde  v.  Wilson,  54  Or.  68,  102  Pac.  301;  Crawford's  Estate,  51 
Or.  76,  90  Pac.  147,  93  Pac.  820. 

28  Oliver  v.  Harvey,  5  Or.  360;  Shirley  v.  Burch,  16  Or.  1,  18  Pac. 
351. 

(794) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  EBROE.          §  477 

against  him  and  obey  the  decree  of  the  appellate 
court.29  Within  such  ten  days  the  original  undertak- 
ing with  the  proof  of  service  indorsed  thereon  must  be 
filed  with  the  clerk  of  the  court.  The  amount  of  the 
undertaking  is  fixed  by  the  court.30  The  appellee  has 
five  days  from  date  of  service  of  the  undertaking  in 
which  to  object  to  the  sufficiency  of  the  sureties,  and  if 
objections  are  filed,  they  must  justify  in  like  manner  as 
in  bail  on  arrest.31 

The  appeal  is  deemed  perfected  from  the  expiration 
of  the  time  for  exception  to  sufficiency  of  the  sureties 
or  from  the  justification  thereof,  but  where  the  party 
in  good  faith,  after  due  notice  of  his  appeal,  omits 
through  mistake  to  do  any  other  act,  including  filing 
of  an  undertaking,  necessary  to  perfect  the  appeal 
or  stay  proceedings,  the  lower  court  or  judge  thereof, 
or  the  appellate  court,  may  permit  an  amendment  or 
performance  of  such  act  on  such  terms  as  may  be 
just.32 

§  477.    Appeals  by  other  parties. 

Any  other  party  against  whom  an  adverse  order  or 
decree  has  been  entered  by  the  county  court  desiring 
to  appeal  from  the  same  shall  give  bond  in  such  sum  as 
the  court  may  direct,  within  thirty  days,  signed  by 
two  or  more  sureties  to  be  approved  by  the  court,  con- 
ditioned that  the  appellant  will  prosecute  such  ap- 
peal to  effect,  without  unnecessary  delay,  and  pay  all 
costs  that  may  be  adjudged  against  him.33 

29  L.  O.  L.,  S  550,  subd.  2,  §  551. 

30  L.  O.  L.,  §  550. 

31  L.  O.  L.,  §  550,  subd.  3. 

32  L.  0.  L.,  §  550,  subd.  5. 

33  Rev.   Stats.,  c.   17,  §  264,   [1528];  In  re  Powers'  Estate,  79  Neb. 
680,  113  N.  W.  198;  Jones  v.  Piggott,  68  Neb.  140,  93  N.  W.  1000. 

(795) 


§  477  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

The  bond  should  run  to  the  county  judge.  It  is 
not  void  if  it  runs  to  the  state  of  Nebraska  as  obligee. 
If  objections  are  made,  the  appellate  court  should  re- 
quire appellant  to  file  a  new  bond.34 

If  the  records  do  not  show  an  order  of  the  court  fix- 
ing its  amount,  and  it  appears  to  have  been  approved 
by  the  county  court  and  filed  within  the  thirty  days, 
it  will  be  presumed  to  have  fully  conformed  to  the 
court's  orders.35  If  it  is  defective  for  any  reason,  as 
being  signed  by  but  one  surety,36  or  failing  to  contain 
all  the  statutory  conditions,  the  court  will  not  be  de- 
prived of  jurisdiction.  A  new  one  may  be  filed  which 
does  comply  with  the  law.37  A  bond  which  is  defective 
because  a  part  of  the  necessary  conditions  are  omitted 
does  not  operate  as  a  supersedeas,  and  the  county  court 
may  proceed  in  the  matter  the  same  as  if  no  bond  were 
filed.38 

Form  No.  209. 
BOND  OF  APPELLANT. 

[Title  of  Cause  and  Court.] 
Know  all  men  by  these  presents,  that  we,  E.  F.,  as  principal,  and 

G.  H.  and  L.  M.,  as  sureties,  all  of  said county,  Nebraska,  are 

held  and  firmly  bound  unto  the  county  judge  of  said  county, 

Nebraska,   in  the   penal   sum  of  dollars,  for  which  payment 

well  and  truly  to  be  made  we  do  hereby  jointly  and  severally  bind 

34  In  re  Gannon's  Estate,  64  Neb.  220,  89  N.  W.  1028. 

35  Jacobs  v.  Morrow,  21  Neb.  233,  31  N.  W.  739. 

36  Casey  v.  Pebbles,  13  Neb.  7,  12  N.  W.  840. 

37  O'Dea  v.  Washington  County,  3  Neb.  122. 

38  In  re  Jones'  Estate,  83  Neb.  841,  120  N.  W.  839. 

(796) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  ERROB.         §  478 

ourselves,  our  heirs,  executors,  administrators,  and  assigns  by  these 
presents. 

Dated  this  day  of ,  19 — . 

Whereas,  on  the  day  of  ,  19 — ,  in   the   county  court 

of county,  Nebraska,  an  order  was  entered  by  said  court  allow- 
ing the  final  account  of  C.  D.  as  administrator  of  said  estate,  and  said 
E.  F.,  an  heir  of  said  A.  B.,  desires  to  appeal  from  the  order  of  said 

court   allowing   said   account   to  the   district  court   of  county, 

Nebraska: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  E.  F.  shall  prosecute  said  appeal  to  effect  without  unnecessary 
delay,  and  pay  all  debts,  damages,  and  costs  that  may  be  adjudged 
against  him,  then  these  presents  to  be  null  and  void;  otherwise  to  be 
and  remain  in  full  force  and  effect. 

(Signed)  E.  F. 
G.  H. 
L.  M. 

I  hereby  approve  of  the  foregoing  bond,  both  as  to  form  and  suffi- 
ciency of  sureties,  this day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

§  478.  Appeals  by  other  parties  from  decrees  adverse 
to  the  estate. 

A  creditor,  heir,  devisee,  legatee  or  distributee  may 
appeal  from  an  order  or  decree  of  the  county  court 
which  is  adverse  to  the  estate.39  The  right  of  such 
party  to  take  the  matter  to  a  higher  court  does  not 
depend  on  the  failure  of  the  executor  or  administrator 
to  appeal.40 

Such  parties  are  required  to  make  a  written  applica- 
tion to  the  county  court  to  fix  the  amount  of  the  appeal 
bond.  Such  bond,  aside  from  the  usual  conditions 

3»  Rev.  Stats.,  c.  17.  §  271,  [1535]. 

40  Eibble  v.  Furmin,  71  Neb.  108,  98  N.  W.  420. 

(797) 


§  478  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

contained  in  appeal  bonds  of  other  parties,  must  be 
given  to  also  secure  the  intervening  damages  and  costs 
to  the  adverse  party.41  It  must  be  filed  within  thirty 
days.42 

Form  No.  210. 

BOND    OF    CEEDITOR    ON    APPEAL    FROM    ALLOWANCE    OF 
CLAIM  OF  ANOTHER  CREDITOR. 

[Title  of  Cause  and  Court.] 

Know  all  men  by  these  presents,  that  we,  E.  F.,  as  principal,  and 

G.  H.  and  L.  M.,  as  sureties,  all  of  — county,  Nebraska,  are  held 

and  firmly  bound  unto  the  county  judge  of  county,  Nebraska, 

in  the  penal  sum  of  dollars,  for  which  payment  well  and 

truly  to  be  made  we  do  hereby  jointly  and  severally  bind  ourselves, 
our  heirs,  executors,  administrators  and  assigns. 

Dated  this  day  of  ,  19 — . 

Whereas,  on  the  day  of  ,  19 — ,  an  order  was  entered 

in  the  county  court  of  county,  Nebraska,  allowing  a  certain 

demand  of  dollars  against  said  estate  and  in  favor  of  X.  Y., 

and  said  E.  F.,  as  a  creditor  of  said  estate,  and  for  the  reason  that 
said  estate  is  insolvent,  is  desirous  of  appealing  from  said  order  to 
the  district  court  of  said  county: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if 
the  said  E.  F.  shall  save  said  estate  harmless  from  all  damages  and 
costs,  and  said  X.  Y.  from  intervening  damages  and  costs,  and  will 
prosecute  this  appeal  to  effect  without  unnecessary  delay,  and  pay  all 
debts,  damages,  and  costs  that  may  be  adjudged  against  him,  then 

41  Rev.  Stats.,  e.  17,  §  271,   [1535];  Drexel  v.  Rochester  Loan  Co., 
65  Neb.  231,  91  N.  W.  254. 

42  Bazzo  v.  Wallace,  16  Neb.  290,  20  N.  W.  315;  Malick  v.  McDer- 
mot's  Estate,  25  Neb.  268,  41  N.  W.  157;  Davis  v.  Davis,  27  Neb.  859, 
44  N.  W.  40;  Drexel  v.  Rochester  Loan  Co.,  65  Neb.  231,  91  N.  W.  254. 
The  cases  above  cited  all  hold  that  that  portion  of  section  1535  of 
the  Revised  Statutes  giving  an  interested  party  ten  days'  time  after 
the  expiration  of  the  time  given  an  executor  to  appeal  was  repealed  by 
section  263  et  seq.,  being  sections  1,  2    and  3  of  the  act  of  February 
28,  1881,  and  that  the  thirty  day  limit  for  taking  an  appeal  from  any 
order  or  decree  of  the  county  court  applied  in  all  cases. 

(798) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  ERROR.          §  479 

these  presents  to  be  null  and  void;  otherwise  to  be  and  remain  in  full 
force  and  effect. 

(Signed)  E.  F. 
G.  H. 
L.  M. 

§  479.     Transcript. 

It  is  the  duty  of  the  county  judge,  within  ten  days 
after  the  filing  and  approval  of  the  bond,  and  on  pay- 
ment of  his  fees,  or  within  ten  days  after  receiving 
notice  of  appeal  by  a  personal  representative,  to  make 
a  certified  transcript  of  the  record  of  the  proceedings 
relative  to  the  matter  appealed  from,  and  transmit 
the  same  to  the  clerk  of  the  district  court.43  It  should 
contain  a  copy  of  the  pleadings  filed  and  proceedings 
had  in  the  particular  matter  appealed  from,  and  the 
order  or  decree  complained  of.  The  duty  of  the  court 
to  transmit  it  is  ministerial.44 

The  district  court  acquires  jurisdiction  of  the  appeal 
only  where  the  transcript  and  bond  are  filed  within 
forty  days  from  the  date  of  the  order  and  within  ten 
days  from  the  date  the  bond  was  filed  in  the  county 
court.45 

If  the  transcript  and  bond  are  filed  after  the  time, 
the  adverse  party,  by  appearing  generally  and  plead- 
ing to  the  issue  or  applying  for  continuance,  waives  his 
right  to  move  to  dismiss.46 

If  the  appeal  is  not  docketed  in  time  on  account 
of  the  neglect  of  the  county  judge,  and  the  appellant  is 

43  Rev.  Stats.,  c.  17,  §  266,  [1530]. 

44  In  re  Estate  of  McShane,  84  Neb.  70,  120  N.  W.  1018. 

45  In  re  Estate  of  Powers,   79  Neb.  680,  113  N.  W.  198;  Jones  v. 
Piggott,  68  Neb.  140,  93  N.  W.  1000;  Rhea  v.  Brown,  4  Neb.  Unof.  461, 
94  X.  W.  716. 

46  Stevens  v.  Nebraska  &  Iowa  Ins.  Co.,  29  Neb.  187,  45  N.  W.  284. 

(799) 


§  479  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

free  from  fault,  lie  cannot  be  deprived  of  his  rights.47 
In  such  case  the  appeal  should  be  docketed  and  heard 
the  same  as  if  filed  within  the  proper  time.48  In  pro- 
bate appeals  it  is  the  duty  of  the  judge  to  transmit  the 
records  to  the  clerk  of  the  district  court;  in  civil  cases, 
the  attorney  for  the  appellant. 

Under  the  Oregon  practice,  it  is  the  duty  of  the  ap- 
pellant to  file  a  transcript  of  the  record  of  the  proceed- 
ings in  the  lower  court  with  the  circuit  court  within 
thirty  days  from  the  date  of  perfecting  the  appeal. 
Proof  of  service  of  the  notice  of  appeal  and  the  under- 
taking, when  one  is  required  of  the  appellant,  and  the 
original  pleadings,  etc.,  in  the  judgment  or  matter  ap- 
pealed from,  should  also  be  included.49 

If  the  appeal  is  from  a  decree,  the  evidence  taken  in 
the  lower  court,  duly  certified,  must  also  accompany 
the  transcript.50 

If  the  transcript  is  not  filed  within  the  time  pro- 
vided, the  appeal  shall  be  deemed  abandoned  and  the 
effect  thereof  terminated,  but  either  the  trial  or  ap- 
pellate court  may  upon  such  terms  as  may  be  deemed 
just  enlarge  the  time  for  filing  the  same  but  cannot 
extend  it  beyond  the  term  of  the  appellate  court  next 
following  the  appeal.51  The  filing  of  the  notice  of  ap- 
peal with  proof  of  service,  where  notice  was  not  given 
in  the  entry  of  the  judgment  or  decree,  of  the  under- 
taking when  the  appeal  was  not  taken  by  the  personal 
representative,  and  of  the  evidence  in  case  of  a  decree, 
are  necessary  to  give  the  circuit  court  jurisdiction. 
The  parties  cannot  by  their  appearance  confer  juris- 

47  Continental  B.  &  L.  Assn.  v.  Mills,  44  Neb.  136,  62  N.  W.  478; 
Omaha  Coal  &  Coke  Co.  v.  Fay,  37  Neb.  68,  55  N.  W.  211;  Stewart  v. 
Eaper,  85  Neb.  816,  125  N.  W.  472. 

48  Dobson  v.  Dobson,  7  Neb.  296. 
4»  Laws  1913,  p.  617. 

M  In  re  Plunkett's  Estate,  33  Or.  417,  54  Pac.  152. 
M  Laws  1913,  p.  619. 

(800) 


Chap.  35]   APPEALS  AND  PROCEEDINGS  IN  ERROB.    §  480 

diction  upon  the  appellate  court,  and  in  the  absence 
of  such  jurisdictional  papers,  the  proceedings  must  be 
dismissed.52 

§  480.    Administration  pending  appeals. 

The  filing  of  a  bond,  when  the  appeal  is  taken  by 
other  parties  than  an  executor  or  administrator,  and 
perfecting  the  appeal  operate  as  a  supersedeas  of  the 
order  or  decree  from  which  the  appeal  was  taken.53 
It  does  not  suspend  administration.  The  court  retains 
jurisdiction  over  the  estate  and  all  matters  connected 
therewith  not  legitimately  a  part  of  the  matter  in 
controversy.54 

Perfecting  an  appeal  from  the  order  admitting  or 
refusing  to  admit  a  will  to  probate,  or  granting  or 
refusing  letters  testamentary  or  of  administration, 
does  not  suspend  the  administration  of  the  estate.  If 
the  circumstances  and  conditions  demand,  and  applica- 
tion is  made  therefor,  letters  of  special  administration 
will  issue,  if  they  have  not  already  been  granted.  The 
rights  of  creditors  are  independent  of,  and  should  not 
be  affected  by,  any  controversy  between  the  heirs, 
legatees,  or  devisees  as  to  the  validity  of  the  will,  or 
as  to  who  should  administer  the  estate.  The  court 
may  give  notice  to  creditors,  and  proceed  with  the 
hearing  of  claims,  and  the  special  administrator  has 
authority  to  represent  the  estate  on  such  hearings,  and 
interpose  any  proper  defense  or  counterclaim.55 

52  In  re  Plunkett's  Estate,  33  Or.  417,  54  Pac.  152. 

53  Rev.  Stats.,  c.  17,  §  265,  [1529];  Kerr  v.  Lowenstein,  65  Neb.  43, 
90  X.  W.  931. 

54  Green  v.  Clark,  24  Vt.  136;  Hicks  v.  Hicks,  12  Barb.  (N.  Y.)  322. 
«*  Cadman  v.  Richards,  13  Neb.  384,  14  N.  W.  159. 

51— Pro.  Ad.  (801) 


§  481  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

Perfecting  an  appeal  from  an  order  removing  an 
executor  or  administrator  does  not  have  the  effect  of 
continuing  him  in  office  pending  the  same.  His  powers 
terminate  with  the  date  of  his  removal.  A  coexecutor 
or  coadministrator,  if  there  be  one,  otherwise  an  ad- 
ministrator de  bonis  non,  take  charge  of  the  estate.56 

When  an  appeal  has  been  taken  from  the  order 
allowing  or  rejecting  claims,  an  accounting  can  be 
had  and  the  administration  completed,  excepting  only 
the  claim  in  dispute.57 

§  481.    Proceedings  in  appellate  court. 

Upon  filing  the  transcript  the  appellate  court  ob- 
tains jurisdiction  to  hear,  try  and  determine  the  mat- 
ter the  same  as  on  appeal  from  the  judgment  of  the 
county  court  in  civil  cases.58  The  sufficiency  of  the 
transcript  can  be  raised  only  by  motion,  supported  by 
affidavit,  which  must  be  filed  before  any  action  is  taken 
by  the  appellee.  By  appearing  and  moving  for  any 
order  or  filing  any  pleading,  the  appellee  is  estopped 
from  questioning  its  sufficiency.59  It  may  be  amended 
under  the  general  rule  regarding  amendments  of  tran- 
scripts in  appeals.60 

The  right  of  a  party  to  appeal  without  giving  the 
statutory  bond  or  undertaking  may  be  raised  by 

56  Knight  v.  Hamakar,  33  Or.  154,  54  Pac.  227,  659;  Day  v.  Holland, 
15  Or.  364,  15  Pac.  855;  Dutcher  v.  Culver,  23  Minn.  415. 

57  Section  412,  supra. 

58  Rev.  Stats.,  c.  117,  §  267,  [1531]. 

B»  In  re  Estate  of  Creighton,  88  Neb.  107,  129  N.  W.  181.  See 
L.  O.  L.,  §  555. 

60  Fulton  v.  Ryan,  33  Neb.  456,  50  N.  W.  430;  Worley  v.  Shong,  35 
Neb.  311,  53  N.  W.  72;  L.  O.  L.,  §  555. 

(802) 


Chap.  35]   APPEALS  AND  PROCEEDINGS  IN  ERROR.    §  481 

motion,  and  if  the  court  finds  that  the  judgment  or 
order  appealed  from  affects  the  personal  rather  than 
the  official  rights  of  the  representative,  the  appeal 
should  be  dismissed.61  The  personal  representative 
by  appeal  waives  irregularities,  if  any,  antecedent  to 
the  date  of  the  judgment  or  order  appealed  from,  pro- 
vided they  are  not  jurisdictional.62 

The  general  rule  is  that  all  judgments  or  proceedings 
appealed  to  the  higher  court  must  be  tried  on  the 
same  issues  as  in  the  county  court,  a  liberal  construc- 
tion being  given  to  the  pleadings.63  It  may  be  tried 
on  the  same  pleadings  as  below  or  new  pleadings  filed, 
the  matter  being  largely  in  the  discretion  of  the  appel- 
late court.64  There  is  one  exception  to  the  rule.  On 
an  appeal  from  a  decree  of  distribution,  a  party  who 
did  not  appear  in  the  county  court  may  file  a  petition 
for  intervention.65 

Under  the  Oregon  practice,  an  appeal  from  a  judg- 
ment of  the  county  court  in  a  probate  matter,  such  as 
the  judgment  allowing  or  rejecting  a  claim,  under  the 
special  proceedings  for  trial  of  demands  against  an 
estate,  is  tried  in  the  same  manner  as  an  appeal  in  a 
civil  action.66  Other  final  orders  of  tha  county  court 
in  probate  matters  are  regarded  as  in  the  nature  of 
decrees  in  equity,  and  are  tried  in  the  circuit  court  on 

61  Rhea  v.  Brown,  4  Neb.  Unof.  461,  94  N.  W.  716. 

62  Dredla  v.  Baache,  60  Neb.  655,  83  N.  W.  916. 

«3  Graham  v.  Townsend.  62  Neb.  364,  87  N.  W.  169;  Estate  of  Fitz- 
gerald v.  First  Nat.  Bank,  65  Neb.  97.  90  N.  W.  994;  L.  O.  L.,  §  556. 
«4  Estate  of  Fitzgerald  v.  First  Nat.  Bank,  65  Neb.  97,  90  N.  W.  994. 

65  In  re  Creighton's  Estate,  91  Neb.  654,  136  N.  W.  1001. 

66  Johnson  v.  Schofner,  23  Or.  115,  31  Pac.  254;  Wilkes  v.  Cornelius, 
21  Or.  341,  31  Pac.  245. 

(803) 


§  482  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

appeal  anew  on  the  pleadings,  and  evidence  given  in 
the  lower  court.67 

In  many  cases  of  probate  appeals  the  evidence  is 
largely  of  a  documentary  character,  but  in  case  of  the 
probate  of  wills,  removal  of  personal  representatives 
for  misconduct  and  some  final  accounts,  the  questions 
of  fact  are  determined  by  oral  evidence.  The  decision 
of  the  county  judge  who  heard  such  witnesses  is  en- 
titled to  great  weight,  and  will  usually  be  upheld, 
unless  the  appellate  court  is  of  the  opinion  that  the 
weight  of  the  testimony  is  the  other  way.68 

The  right  to  a  jury  trial  depends  upon  the  character 
of  the  issue.  If  equitable,  or  involving  a  matter  of 
judicial  discretion,  like  the  competency  of  a  person 
seeking  the  appointment  as  executor  or  administrator, 
the  trial  should  be  to  the  court  as  in  an  action  in 
equity,69  but  if  an  appeal  from  the  order  on  the  hearing 
for  the  probate  of  a  will,  or  a  claim  against  an  estate, 
or  where  a  question  of  fact  is  put  in  issue,  either  party 
is  entitled  to  a  jury.70  All  cases  being  tried  de  novo, 
the  burden  of  proof  is  the  same  as  in  the  county  court. 

Under  the  Oregon  practice,  probate  appeals  are 
heard  in  the  circuit  court  by  the  court  without  a  jury.71 

§  482.    Failure  to  perfect  appeals. 

If  any  claimant  appealing  from  the  disallowance  of 
his  claim  shall  fail  to  prosecute  his  action  in  the  dis- 

«7  In  re  Plunkett's  Estate,  33  Or.  416,  54  Pac.  152;  Morrison's  Es- 
tate, 48  Or.  614,  87  Pac.  1043;  In  re  Roach's  Estate,  50  Or.  189,  92 
Pac.  118. 

68  In  re  Dart's  Will,  34  Or.  66,  54  Pac.  947. 

69  in  re  Scott's  Estate,  76  Neb:  28,  106  N.  W.  1003. 

70  Sheedy  v.  Sheedy,  36  Neb.  373,  54  N.  W.  560. 

71  Stevens  v.  Meyers,  62  Or.  407,  126  Pae.  39. 

(804) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  ERROR.          §  482 

trict  court,  such  court  may  dismiss  the  appeal,  or  a 
certificate  may  be  filed  in  the  county  court,  as  the  case 
may  require,  the  same  as  in  the  case  of  appeals  from 
a  justice  of  the  peace,  and  thereupon  such  claim  shall 
be  forever  barred,  and  the  county  court  shall  proceed 
in  the  same  manner  as  if  no  appeal  had  been  taken;72 
and  the  same  is  true  where  a  person  objecting  to  the 
allowance  of  some  other  person's  claim  shall  appeal 
from  such  allowance.  In  this  case,  upon  motion  of  the 
adverse  party,  and  upon  his  producing  an  attested 
copy  of  the  record  and  papers  showing  such  appeal, 
the  district  court  shall  cause  the  appeal  to  be  docketed, 
affirm  the  allowance  appealed  from,  and  enter  judg- 
ment for  costs  against  the  appellant.73  It  may  be 
stated  as  a  general  rule  that  when  the  district  court 
dismisses  an  appeal,  for  whatever  cause,  the  effect  of 
the  dismissal  is  to  revive  the  original  order,  judgment, 
or  decree,  and  give  it  the  same  force  as  if  no  appeal 
had  been  taken.74 

If  it  appears  that  the  appeal  was  taken  vexatiously 
or  for  delay,  the  court  shall  adjudge  that  the  appellant 
pay  the  costs  thereof,  including  an  attorney's  fee,  to 
the  adverse  party,  the  court  to  fix  the  amount,  and  the 
bond  is  liable  therefor  in  cases  where  it  is  required.75 

72  Eev.  Stats.,  c.  17,  §  269,  [1533]. 

73  Rev.  Stats.,  c.  17,  §  290,  [1534]. 

74  Bell  v.  Walker,  54  Neb.  222,  74  N.  W.  617;  Cleveland  v.  Quilty, 
128  Mass.  578. 

75  Rev.  Stats.,  c.  17,  §  264,    [1528].     This  section  covers  vexatious 
appeals  by  an  executor  or  administrator.     See  §  477,  supra. 

1(806) 


§§483,484      PROBATE    AND    ADMINISTRATION.          [Chap.  35 

§  483.    Judgments  and  decrees  of  the  district  court 
on  appeal. 

All  probate  appeals  being  tried  de  novo  in  the  dis- 
trict court,  the  judgment  or  decree  entered  is  final.76 
It  is  not  a  modification  of  the  decision  of  the  lower 
court,  but  a  judgment  or  decree  of  the  appellate 
court.77  If  in  favor  of  the  estate,  it  is  enforceable  by 
district  court  process.  In  other  cases,  it  must  be  certi- 
fied to  the  county  court  and  its  provisions  complied 
with  under  the  process  or  order  of  that  court.  The 
district  court  cannot  issue  an  execution  against  an 
executor  or  administrator  in  his  representative 
capacity.78 

It  may  be  taken  to  the  supreme  court  in  the  same 
manner  as  other  final  decisions  of  the  district  court,79 
except  that  a  personal  representative  may  appeal  with- 
out giving  bond.80  Any  other  appellant  must  give  the 
statutory  undertaking.81 

§  484.    Writ  of  error. 

Where  manifest  error  affecting  the  jurisdiction  ap- 
pears on  the  record,  or  where  the  court  has  exercised 
functions  erroneously  to  the  manifest  prejudice  of  a 
party,  the  proceedings  may  be  reviewed  by  error  to  the 
district  court.  The  repeal  of  the  statute  regulating 

76  Kibble  v.  Furmin,  69  Neb.  38,  94  N.  W.  967;  Williams  v.  Miles, 
73  Neb.  193,  102  N.  W.  402. 

77  In  re  Roach's  Estate,  50  Or.  189,  92  Pac.  118. 

78  Bennett  v.  Taylor,  4  Neb.  Unof.  800,  96  N.  W.  669. 

79  Williams  v.  Miles,  73  Neb.  193,  102  N.  W.  402,  105  N.  W.  181, 
106  N.  W.  769. 

80  Kerr  v.  Lowenstein,  65  Neb.  43,  90  N.  W.  931. 

81  In  re  John's  Will,  30  Or.  522,  47  Pac.  341. 

(806) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  ERROB.          §  485 

the  taking  of  cases  to  an  appellate  court  by  writ  of 
error82  applies  to  the  removal  of  cases  from  the  district 
to  the  supreme  court.83  It  is  a  question  whether  such 
right  actually  exists  under  the  code,  but  as  was  said  in 
the  case  last  cited,  "the  practice  heretofore  used  may 
be  adopted  so  far  as  may  be  necessary  to  prevent  a 
failure  of  justice."  Previous  to  the  act  of  1905,  the 
right  was  expressly  recognized  in  a  number  of  probate 
cases.84 

Under  the  Oregon  practice,  the  writ  of  review,  which 
is  identical  with  the  common-law  writ  of  certiorari,*5 
may  issue  to  the  county  court  in  all  probate  cases 
where  such  court  has  exercised  its  functions  erro- 
neously, or  has  exceeded  its  jurisdiction,  to  the  injury 
of  some  substantial  right  of  a  party.86  It  is  the  usual 
remedy  for  prejudicial  errors  appearing  on  the  face  of 
the  record,  not  based  on  the  rulings  of 'the  lower  court, 
on  the  law  and  the  evidence  and  the  application  of 
the  law  to  the  facts,  or  where  the  record  shows  that 
the  court  was  without  jurisdiction.87 

§  485.    Procedure. 

The  district  court  of  the  county  within  which  the 
administration  is  had  acquires  jurisdiction  of  error 
proceedings  by  the  filing  of  a  petition  in  error  within 
six  months  from  the  entry  of  the  order  or  decree  com- 

82  Laws  1905,  c.  174,  p.  657. 

83  Engles  v.  Morgenstern,  85  Neb.  51,  122  N.  W.  688. 

84  Rogers  v.  Redick,   10  Neb.  322,  6  N.  W.  413;  Herman  v.  Beck, 
68  Neb.  566,  94  X.  W.  512;  Dredla  v.  Baache,  60  Neb.  655,  83  N.  W.  916, 

85  L.  O.  L.,  §  602. 

86  Garnsey  v.   County  Court,  33  Or.   295,  54  Pac.  1089;   Malone  v. 
Cornelius,  34  Or.  194,  55  Pac.  536. 

87  Garnsey  v.   County  Court,  33  Or.  295,  54  Pac.   1089;  Farrow  v. 
Nevin,  44  Or.  496,  75  Pae.  711. 

(807) 


§  485  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

plained  of,  except  where  a  party  is  an  infant  or  of  un 
sound  mind,  or  imprisoned,  in  which  case  he  is  allowed 
one   year,   exclusive   of   the   time   of  his*  disability,88 
which  petition  should  set  out  the  specific  errors  com- 
plained of  by  formal  allegation.89 

There  are  no  code  provisions  for  settling  and  signing 
a  bill  of  exceptions  in  probate  proceedings  in  the 
county  court,  but  the  right  to  the  same  has  been  im- 
pliedly  recognized.90 

Removal  of  a  case  to  the  district  court  by  error  is 
therefore  an  available  remedy  only  when  the  juris- 
dictional  defects  appear  on  the  face  of  the  record, 
and  the  practice  is  substantially  the  same  as  on  error 
to  the  district  court  from  a  justice  of  the  peace. 

Form  No.  211. 
PETITION  IN  EREOE. 

In  the  District  Court  of  County,  Nebraska. 

E.  F.,  Plaintiff  in   Error,   vs.   C.  D.,  Administrator  of  the  Estate  of 

A.  B.,  Deceased,  Defendant  in  Error. 
The   plaintiff  complains   of  the  defendant  for  that   on  the  - 

day  of  ,  19 — ,  in  a  proceeding  before  the  county  court  of  said 

county,  in  the  matter  of  the  estate  of  A.  B.,  deceased,  said  court 
entered  an  order  dismissing  the  petition  of  plaintiff  for  the  revoca- 
tion of  the  probate  of  the  last  will  and  testament  of  the  said  A.  B. 
A  transcript  of  the  proceedings  is  hereto  attached.  The  plaintiff 
alleges  that  there  is  error  in  said  proceedings  and  order,  in  this: 

(1)  State  specifically  each  and  all  the  errors  relied  on. 

(2)  Said  court  erred  in  sustaining  the  motion  of  said  C.  D.,  admin- 
istrator, to  dismiss  said  petition,  and  in  dismissing  the  same. 

The  plaintiff  therefore  prays  that  said  order  may  be  reversed,  and 
a  new  hearing  granted  in  said  action,  and  for  such  other  relief  as  may 
be  just  and  equitable. 

(Signed)     E.  F. 

88  Civ.  Code,  §§  616,  644. 

89  Dredla  v.  Baache,  60  Neb.  655,  83  N.  W.  916. 
»0  Herman  v.  Beck,  68  Neb.  566,  94  N.  W.  512. 

(808) 


Chap.  35]   APPEALS  AND  PROCEEDINGS  IN  ERROR.    §  485 

A  transcript  of  the  proceedings  containing  the  final 
order,  judgment  or  decree  sought  to  be  reversed, 
vacated  or  modified  must  be  filed  with  the  petition.91 
The  petition  need  not  be  verified.92 

Under  the  Oregon  practice,  the  writ  is  allowed  by 
the  circuit  court,  or  a  judge  thereof,  of  the  county 
wherein  the  decision  or  determination  sought  to  be 
made  was  entered.  The  petition  must  describe  with 
sufficient  certainty  the  decision  complained  of  and  set 
out  specifically  the  errors  therein,93  and  must  be  signed 
by  the  plaintiff  or  his  attorney,  and  verified  by  the 
certificate  of  an  attorney  of  the  court,  to.  the  effect  that 
he  has  examined  the  process  or  proceeding,  and  the 
decision  or  determination  therein,  and  that  the  same  is 
erroneous  as  alleged  in  said  petition.94 

It  should  set  up  the  facts  showing  the  illegal  action 
of  the  lower  court  and  the  consequent  injury,  and  not 
conclusions  therefrom.95  The  party  applying  for  the 
writ  is  denominated  the  plaintiff  and  the  other  parties 
defendants. 

Form  No.  21  la — Oregon. 
PETITION  FOE  WRIT  OF  REVIEW. 

[Title  of  Cause  and  Court.] 

C.  D.,  plaintiff  herein,  respectfully  represents   that   on  the  

day  of  ,   19 — ,  letters  testamentary  upon  the  estate  of  A.  B., 

deceased,  were  issued  to  him  out  of  and  under  the  seal  of  the  county 

court  of  said  county;  that  on  the day  of ,  19 — ,  one  E.  F. 

presented  to  plaintiff  a  certain  demand  against  said  estate,  the  same 
being  a  promissory  note  for  the  sum  of  $ ,  which  said  alleged 

si  Civ.  Code,  §  620. 

82  Newlove  v.  Woodward,  9  Xeb.  505,  4  X.  W.  237. 

93  L.  O.  L.,  §  6t)4;  Farrow  v.  Xevin,  44  Or.  498,  75  Pac.  711;  Curran 
v.  State,  53  Or.  154,  99  Pac.  421. 

94  L.  O.  L.,  §  604. 

95  Southern   Oregon   Co.   v.   Coos   County,  30  Or.  250,  47  Pac.  852; 
Southern  Oregon  Co.  v.  Gage,  31  Or.  590,  47  Pac.  1101. 

(809) 


§  486  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

claim  was  on  the  said  day  of  ,  19 — ,  examined  and  re- 
jected by  said  plaintiff  as  the  same  appeared  on  the  face  thereof  to 
be  barred  by  the  statute  of  limitations,  more  than  five  years  having 
elapsed  since  the  same  became  due  and  since  any  payments  have  been 
made  thereon;  that  said  E.  F.  filed  said  claim  in  the  county  court  of 
said  county  and  gave  notice  to  plaintiff  in  due  form  of  his  application 

for  hearing  thereon  before  said  court,  and  said  court  on  the  

day  of  ,  19 — ,  entered  an  order  allowing  said  claim  in  the  sum 

of  $ ,  and  that  said  court  acted  without  jurisdiction  in  allowing 

said  claim. 

Plaintiff  therefore  prays  that  a  writ  of  review  issue  out  of  and 
under  the  seal  of  said  district  court  to  the  said  county  court  of  said 
county. 

Dated  this  day  of  ,  19 — . 

(Signed)     C.  D. 

State  of  Oregon, 
County  of ,  ss. 

I,  C.  M.  W.,  an  attorney  of  the  circuit  court  of  said  county,  do 
hereby  certify  that  I  have  examined  the  proceedings  in  said  county 
court  of  said  county  in  the  matter  of  the  special  proceedings  in  regard 
to  the  claim  of  E.  F.  against  the  estate  of  A.  B.,  deceased,  and  the 
judgment  of  said  county  court  thereon,  and  that  proceedings  and 
judgment  are  erroneous  as  alleged  in  said  petition. 

Witness  my  hand  this day  of ,  19 — . 

C.  M.  W., 
Attorney. 

§  486.     Supersedeas  bond. 

The  district  court  acquires  jurisdiction  by  the  filing 
of  the  petition  in  error,96  but  proceedings  in  error  do 
not  operate  as  a  stay  unless  the  clerk  of  the  district 
court  shall  take  a  written  undertaking  to  the  defend- 
ant in  error,  executed  on  the  part  of  the  plaintiff  in 
error  with  one  or  more  sufficient  sureties,  to  the  effect 
that  the  plaintiff  will  pay  all  costs  that  may  accrue  on 
such  proceedings  in  error,  together  with  the  amount 
of  any  judgment  that  may  be  rendered  against  such 

96  Welton  v.  Beltezore,  17  Neb.  401,  23  N.  W.  1. 
(810) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  ERROK.          §  486 

plaintiff  in  error,  either  on  the  further  trial  of  the 
case  after  the  judgment  has  been  reversed  or  set  aside, 
or  upon  and  after  affirmation  thereof  in  the  district 
court.97 

Under  the  Oregon  practice,  an  undertaking,  in  the 
sum  of  not  less  than  fifty  nor  more  than  one  hundred 
dollars,  to  be  fixed  by  the  court,  conditioned  for  the 
payment  of  all  costs  and  disbursements  that  may  be 
adjudged  to  the  defendant  on  review,  is  required  be- 
fore the  writ  issues.98  The  undertaking  does  not  oper- 
ate as  a  stay  unless  the  court  so  directs  in  the  writ,  and 
in  such  case  it  should  be  fixed  by  the  court  at  an  ad- 
equate amount.99 

Form  No.  212. 
BOND  OF  PLAINTIFF  IN  ERROR. 

Know  all  men  by  these  presents,  that  we,  E.  F.,  as  principal,  and 

G.  H.  and  L.  M.,  as  sureties,  all  of county,  Nebraska,  are  held 

and  firmly  bound  unto  C.  D.,  executor  of  the  estate  of  A.  B.,  deceased, 

in  the  penal  sum  of dollars,  for  which  payment  well  and  truly 

to  be  made  we  do  hereby  jointly  and  severally  bind  ourselves,  our 
heirs,  executors,  administrators,  and  assigns. 

Dated  this day  of ,  19 — . 

Whereas,  on  the day  of ,  19 — ,  E.  F.  filed  in  the  office 

of  the  district  court  of  county,  Nebraska,  a  petition  in  error 

to  obtain  a  reversal  of  an  order  rendered  by  the  county  court  of  said 
county,  Nebraska,  on  the  day  of  ,  19 — ,  dismiss- 
ing the  petition  of  the  said  E.  F.  for  the  revocation  of  the  order  admit- 
ting to  probate  the  will  of  the  said  A.  B.,  theretofore  made  in  said 

proceeding,  and  taxing  the  costs  in  the  sum  of  dollars  against 

said  E.  F.,  plaintiff  in  error: 

Xow,  therefore,  the  condition  of  this  obligation  is  such  that  if  the 
said  E.  F.  shall  save  said  estate  harmless,  and  pay  all  costs  that  may 
be  taxed  against  him  in  the  further  prosecution  of  these  error  pro- 

97  Civ.  Code,  §  622. 

»8  L.  0.  L.,  §  606;  Gaston  v.  Portland,  48  Or.  84,  84  Pac.  1040. 

99  L.  O.  L.,  §  608;  Feller  v.  Feller,  40  Or.  76,  66  Pac.  468. 

(811) 


§  487  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

ceedings,  then  these  presents  to  be  null  and  void;  otherwise  to  be  and 
remain  in  full  force  and  effect. 

(Signed)  E.  F. 
G.  H. 
L.  M. 

The  foregoing  undertaking  hereby  approved,  both  as  to  form  and 

sufficiency  of  sureties,  this day  of ,  19 — . 

(Signed)     J.  M.  C., 
Clerk  District  Court. 

§  487.    Summons  in  error. 

The  plaintiff  in  error  is  required  to  file  a  praecipe, 
whereupon  a  summons  issues  under  the  seal  of  the 
district  court  to  the  sheriff  of  the  county  in  which 
the  defendant  in  error  or  his  attorney  of  record  may 
be.  It  must  be  made  returnable  on  or  before  the 
first  day  of  the  next  term  of  the  district  court  if  made 
in  vacation,  and  twenty  days  before  the  commence- 
ment of  the  term;  if  issued  in  term  time,  or  within 
twenty  days  before  the  commencement  of  the  term,  it 
shall  be  returnable  on  a  day  named  in  the  summons.100 
It  may  be  served  on  the  defendant  in  error  or  his  at- 
torney of  record.101 

An  attorney  of  record  for  a  defendant  in  error  may 
waive  issue  and  service  of  the  summons  after  the  tran- 
script and  petition  are  filed.102 

100  Civ.  Code,  §§  618,  619. 

101  Civ.  Code,  §  618;  Link  v.  Reves,  63  Neb.  424,  88  N.  W.  670. 

102  Dakota  County  v.  Bartlett,  67  Neb.  62,  93  N.  W.  192. 

(812) 


Chap.  35]       APPEALS  AND  PROCEEDINGS  IN  ERROR.          §  487 

Form  No.  213. 

PRAECIPE   FOR  SUMMONS  IN  ERROR. 
In  the  District  Court  of County,  Nebraska. 

E.  F.,   Plaintiff  in  Error,  vs.   C.   D.,   Administrator   of  the   Estate  of 
A.  B.,  Deceased,  Defendant  in  Error. 

To  J.  M.  C.,  Clerk  of  Said  Court: 

Issue  summons  in  error  in  the  above-entitled  cause,  directed  to  the 

sheriff  of county,  Nebraska,  and  returnable  on  the  day 

of ,  19—. 

Dated  this  day  of  ,  19—. 

(Signed)     E.  F., 

Plaintiff  in  Error, 
By  F.  D.,  His  Attorney. 

Under  the  Oregon  practice,  on  the  presentation  to 
the  circuit  court  or  a  judge  thereof  of  a  petition  which 
shows,  prima  facie,  that  the  county  court  has  acted 
without  jurisdiction,  or  exercised  its  functions  erro- 
neously to  the  prejudice  of  substantial  rights  of  the 
plaintiff,103  and  the  filing  of  a  proper  bond,  it  is  the 
duty  of  the  court  to  order  the  issue  of  a  writ  of  review 
directed  to  the  clerk  of  the  county  court,  requiring  him 
to  return  said  writ  to  the  circuit  court  at  a  time  therein 
fixed,  which  may  be  either  at  the  next  term  or  in  vaca- 
tion, with  a  certified  copy  of  the  record  or  proceedings 
annexed  thereto,  that  the  same  may  be  reviewed  by 
such  circuit  court.  The  court  may  in  its  discretion 
also  order  that  further  proceedings  be  stayed  pending 
decision  on  the  writ.104  The  only  questions  before  the 
judge  at  this  time  are  the  sufficiency  of  the  petition,105 
and  the  right  of  the  plaintiff  to  a  stay.106 

The  order  allowing  the  writ,  fixing  the  date  of  its 
return  and  staying  proceedings  may  be  indorsed  upon 

103  Holmes  v.  Cole,  51  Or.  486,  94  Pac.  964;  Raper  v.  Dunn,  53  Or. 
203,  99  Pac.  889. 

104  L.  0.  L.,  §§  607,  608. 

105  Holmes  v.  Cole,  51  Or.  486,  94  Pac.  964. 

io«  Feller  v.  Feller,  40  Or.  76,  66  Pac.  468;  L.  O.  L.,  §  608. 

(813) 


§  487  PKOBATE  AND  ADMINISTRATION.          [Chap.  35 

the  petition.  The  writ  is  then  issued  by  the  clerk  of 
the  circuit  court  on  the  filing  of  the  petition,  order  and 
undertaking. 

Form  No.  214. 

SUMMONS  IN  ERROR. 
State  of  Nebraska, 

County, — ss. 

To  the  Sheriff  of  Said  County: 

You  are  hereby  commanded  to  notify  C.  D.,  executor  of  the  estate 
of  A.  B.,  deceased,  that  E.  F.  has  filed  a  petition  in  error  in  the  dis- 
trict court  of  county,  Nebraska,  to  obtain  a  reversal  of  the 

order  entered  in  the  county  court  of  said  county  on  the day  of 

,  19 — ,  in  the  proceedings  entitled,  "In  the  Matter  of  the  Estate 

of  A.  B.,  Deceased,"  dismissing  the  petition  of  said  E.  F.  for  the  revo- 
cation of  the  probate  of  the  will  of  said  A.  B. 

You  will  make  due  return  of  this  summons  on  the  day  of 

,  19—. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
seal  of  said  court  this day  of ,  19 — . 

fSeal]  (Signed)     J.  M.  C., 

Clerk  of  District  Court. 

Form  No.  214a — Oregon. 

WRIT  OF  REVIEW. 
[Title  of  Cause  and  Court.] 

To  G.  H.,  Clerk  of  the  County  Court  of ,  County,  Oregon. 

Whereas,  on  this  day  of  ,  19 — ,  an  order  was  duly 

made  by  the  Honorable  J.  L.  S.,  a  judge  of  the  circuit  court  of  said 

county,  on  the  petition  of  C.  D.,  plaintiff  herein,  for  a  writ  of 

review  to  said  circuit  court  of  a  certain  decree  of  the  county  court 

of  county,  Oregon,  in  a  proceeding  pending  therein,  entitled 

"In  the  Matter  of  the  Estate  of  A.  B.,  Deceased,"  wherein  it  was 
ordered  and  adjudged  by  said  county  court  [state  judgment  or  decree 
as  in  the  petition],  for  the  reason  that  said  county  court  acted  with- 
out jurisdiction  in  entering  said  decree,  and  exercised  its  functions 
as  a  court  erroneously,  directing  that  a  writ  of  review  issue  out  of 
and  under  the  seal  of  said  circuit  court  to  the  end  that  said  decree 
[judgment]  of  said  county  court  may  be  reviewed  by  this  court: 

(814) 


Chap.  35]   APPEALS  AND  PROCEEDINGS  IN  ERROR.    §  488 

You  are  hereby  commanded  to  return  this  writ  to  the  circuit  court 

of county,  Oregon,  on  or  before  the day  of ,  19 — , 

with  a  certified  copy  of  the  records  of  the  county  court  concerning 
said  decree. 

In   testimony  whereof,  I,  E.   F.,   clerk   of   said   circuit   court,   have 
hereunto  subscribed  my  name  and  affixed  the  seal  of  said  court  this 

-  day  of  ,  19—. 

[Seal]  (Signed)     E.  F., 

Clerk  Circuit  Court. 

Service  of  the  writ  is  had  by  delivery  of  the  original 
to  the  clerk  of  the  county  court  by  any  officer  or  per- 
son authorized  to  serve  a  summons  and  by  a  service  of 
a  certified  copy  by  delivery  to  the  opposite  party  at 
least  ten  days  before  the  return  of  the  original  writ,107 
but  on  a  writ  of  review  of  an  order  in  a  contest  over 
probating  a  will,  there  are  no  adverse  parties,  and  no 
one  is  entitled  to  service  as  a  matter  of  right.108 

§  488.    Hearing  in  the  district  court. 

A  probate  proceeding  brought  to  the  district  court 
by  writ  of  error  is  tried  on  the  questions  of  law  set  out 
in  the  petition  in  error  and  appearing  on.  the  tran- 
script. If  the  decision  of  the  lower  court  is  sustained, 
the  court  renders  judgment  against  the  plaintiff  in 
error  for  costs,  and  certifies  its  decision  in  the  premises 
to  the  county  court  in  order  that  it  may  be  carried  into 
effect.109 

If  the  lower  court  is  reversed,  the  case  is  retained 
for  trial  in  the  district  court,  where  it  is  tried  on  the 
same  issues  as  in  the  lower  court  and  in  the  same  man- 
ner as  though  originally  brought  to  the  district  court 

107  L.  o.  L.,  s  609. 

108  Malone  v.  Cornelius,  34  Or.  195,  55  Pac.  536;  Hubbard  v.  Hub- 
bard,  7  Or.  42. 

109  Civ.  Code,  §  624. 

(815) 


§  488  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

on  appeal,110  and  the  judgment  certified  to  the  county 
court.111 

Form  No.  215. 
JUDGMENT   AFFIRMING   ORDER   OF  COUNTY   COURT. 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  in  error  and  the  transcript  of  the  pro- 
ceedings and  the  final  order  of  the  county  court  of  county, 

Nebraska,  and  was  submitted  to  the  court. 

On  consideration  whereof,  the  court  finds  that  no  error  appears 
in  said  proceeding  or  order.  It  is  therefore  considered  by  said  court 
that  said  order  be  and  the  same  is  hereby  affirmed,  and  that  the  de- 
fendant recover  his  costs  herein  expended,  taxed  at  $ —  — .  It  is 
further  ordered  that  the  clerk  of  this  court  certify  this  judgment  to 
the  said  county  court,  that  the  judgment  or  order  affirmed  may  be 
enforced,  as  if  proceedings  in  error  had  not  been  taken. 

Form  No.  216. 
JUDGMENT  REVERSING  ORDER  OF  COUNTY  COURT. 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  in  error  and  the  transcript  of  the  proceed- 
ings and  the  final  order  or  decree  of  the  county  court  of county, 

Nebraska,  and  was  submitted  to  the  court. 

On  consideration  whereof,  the  court  finds  that  there  is  error  in 
said  proceedings  and  order  or  decree.  It  is  therefore  considered  by 
the  couri  that  said  order  or  decree  be  and  the  same  hereby  is  reversed 
at  the  costs  to  the  present  time  of  the  defendant  in  error,  and  that 
said  cause  be  retained  in  this  court  for  trial  and  final  judgment,  plead- 
ings to  be  filed  as  in  cases  of  appeals. 

The  hearing  on  a  writ  of  review  brings  up  solely 
questions  of  law  arising  on  the  record  of  the  county 
court.     The  return  is  the  only  pleading  on  the  part  of 
the  defendant  thereby  raising  all  objections  and  de- 
fenses.    The    writ    presents    questions    of    law    only. 
Questions  of  fact,  or  matters  outside  the  record,  can- 
no  Civ.  Code,  §625. 
ill  Rev.  Stats.,  c.  17,  §  268,  [1532]. 

(816) 


Chap.  35]   APPEALS  AXD  PROCEEDINGS  IX  ERROR.    §  489 

not  be  considered.112  The  sufficiency  of  the  petition 
may  be  raised  by  motion.113  If  the  return  is  incom- 
plete, the  court  may  order  a  further  return  to  be 
made.114 

The  writ  is  concurrent  with  the  right  of  appeal,115 
and  though  proceedings  for  both  may  be  commenced, 
prosecuting  one  to  a  hearing  is  an  abandonment  of  the 
other  remedy.116 

Upon  the  review  the  circuit  court  has  power  to  af- 
firm, modify,  reverse  or  annul  the  decision  reviewed,  to 
award  restitution  to  the  plaintiff,  or  by  mandate  direct 
the  lower  court  to  proceed  in  the  matter  reviewed  ac- 
cording to  its  decision.  Appeal  from  a  judgment  on  a 
writ  of  review  lies  to  the  supreme  court  the  same  as 
in  action  brought  in  the  circuit  court.117 

§  489.    Judgment  of  district  court  in  error  proceed- 
ings. 

The  district  court  is  without  jurisdiction  to  enforce 
by  process  issued  under  its  seal  its  judgment  affirming 
the  decision  of  the  lower  court,  except  that  it  may  is- 
sue execution  against  a  plaintiff  in  error  not  an  execu- 
tor or  administrator.  The  judgment  or  decree  is  of 
the  lower  court,  and  enforceable  by  it  alone.118 

The  order  reversing  the  lower  court  is  a  final  one, 
and  may  be  taken  to  the  supreme  court  before  the 

112  Gaston  v.  Portland,  48  Or.  85,  84  Pac.  1040;  Hall  v.  Dunn,  52 
Or.  479,  97  Pac.  811. 

113  Holmes  v.  Cole,  51  Or.  487,  94  Pac.  964. 

114  L.  0.  L.,  §  610. 

115  L.  O.  L.,  §  605. 

lie  Feller  v.  Feller,  40  Or.  77,  66  Pac.  468. 
in  L.  O.  L.,  §  611. 

us  Civ.  Code,  §624;  Rev.  Stats.,  c.  17,  §  628,  [1532];  Bennett's  Es- 
tate v.  Taylor,  4  Neb.  Unof.  900,  96  N.  W.  669. 

52— Pro.  Ad.  (817) 


§  489  PROBATE  AND  ADMINISTRATION.  [Chap.  35 

case  itself  is  tried  by  the  district  court.119  The  judg- 
ment entered  on  trial  of  the  case  after  reversal  of  the 
lower  court  is  final,  and  may  be  appealed  to  the 
supreme  court.120 

H9  Banks  v.  Uhl,  5  Neb.  240;  Tootle,  Hosea  &  Co.  v.  Jones,  19  Neb. 
588,  27  N.  W.  635. 

120  Eibble  v.  Furmin,  69  Neb.  38,  94  N.  W.  967. 

(818) 


CHAPTER  XXXVI. 

APPOINTMENT  AND  REMOVAL  OF  GUARDIANS. 

§  490.  Guardians — Definition. 

491.  Powers,  Rights  and  Duties  of  Natural  Guardians. 

492.  Testamentary  Guardians. 

493.  Appointment  of  Guardian  of  a  Minor. 

494.  Guardians  of  Minors  Who  have  No  Estate. 

495.  To  Whom  Letters  may  Issue. 

496.  Procedure  for  Appointment  of  Guardian  of  a  Minor. 

497.  Hearing. 

498.  Appointment  of  Guardian  for  Insane  or  Incompetent  Person. 

499.  Temporary  Guardian. 

500.  Hearing. 

501.  Guardian  for  Spendthrift. 

502.  Contracts  of  Spendthrift  Pending  Appointment  of  Guardian. 

503.  Nature  of  Order  Appointing  or  Eefusing  to  Appoint  a  Guard- 

ian. 

504.  Guardian's  Bonds. 

505.  Joint  Guardians. 

506.  Guardian  of  Nonresidents. 

507.  Eemoval  of  Guardians. 

508.  Notice  to  Guardian. 

509.  Appointment  of  Successor. 

§  490.    Guardians — Definitions. 

A  guardian  is  a  person  to  whom  is  legally  intrusted 
the  care,  custody,  education  and  management  of  the 
person  or  property,  or  both,  of  a  minor,  or  of  any  per- 
son who  by  reason  of  insanity,  mental  incompetency 
or  being  a  spendthrift  is  adjudged  by  a  court  of  com- 
petent jurisdiction  to  be  incapable  of  looking  after  his 
wants  and  managing  his  business  affairs.1  At  common 
law  guardianship  of  minors  was  the  only  kind  recog- 
nized.2 

1  2  Kent,  Com.,  224. 

2  2  Kent,  Com.,  221. 

(819) 


§  491  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

Minors  include  all  male  children  under  twenty-one 
years  of  age  and  all  female  children  under  eighteen, 
except  that  when  a  female  marries  between  the  ages 
of  sixteen  and  eighteen  her  minority  ends.3 

Under  the  Oregon  statutes  all  persons  under  twenty- 
one  years  of  age  are  minors,  except  that  the  marriage 
of  a  female  terminates  her  minority.4 

Guardians  may  be  divided  into  three  classes: 
Guardians  by  nature, — those  to  whom  the  laws  of 
humanity  give  the  custody  and  control  of  the  child; 
guardians  by  nurture, — those  to  whom  the  custody  and 
control  of  the  person  only  of  the  child  has  been  given 
by  its  parents  or  others;  and  statutory  guardians,  or 
guardians  in  socage.  The  latter  class  are  either  ap- 
pointed by  the  county  court  or  designated  by  will  and 
the  nomination  approved  by  the  court.5 

§  491.    Powers,  rights  and  duties  of  natural  guard- 
ians. 

At  common  law  the  father  was  the  natural  guardian 
of  his  children  and  intrusted  with  their  custody,  con- 
trol and  education.  At  his  death  such  right  passed  to 
the  mother.6 

The  father  and  mother  are  the  natural  guardians  of 
their  minor  children,  and  are  equally  entitled  to  their 

3  Rev.   Stats.,  c.   18,  §  88,   [1627];   Kiplinger  v.  Joslyn,  93  Neb.  40, 
139  N.  W.  1019;  Parker  v.  Starr,  21  Neb.  680,  33  N.  W.  424;  Ward  v. 
Laverty,  19  Neb.  429,  27  N.  W.  393. 

4  L.  O.  L.,  §§  7097,  7099. 

5  Rev.  Stats.,  c.  18,  §§  89,  93,  98,  [1628],  [1632],   [1637];  L.  O.  L., 
§§  1310,  1319,  1322. 

6  Taylor  v.  Jeter,  33  Ga.  195;  In  re  Scarrett,  76  Mo.  565;  Freto  v. 
Brown,  4  Mass.  675. 

(820) 


Chap.  36]  GUARDIANSHIP.  §  491 

custody  and  to  care  for  their  education,  being  them- 
selves competent  to  transact  their  own  business  and 
not  otherwise  unsuitable.7  The  mother  is  the  natural 
guardian  of  her  illegitimate  minor  child.8 

In  the  case  of  a  divorce  the  court  awards  the  custody 
of  the  children  to  the  parent  best  qualified  to  care  for 
them,  regard  being  had  to  the  interests  of  the  child.9 

The  powers  of  a  natural  guardian  are  confined  to 
the  care  and  custody  of  the  person  of  the  child,  and  to 
his  wages,  unless  he  has  been  emancipated.10  It  is 
the  duty  of  natural  guardians  to  support  their  chil- 
dren.11 This  duty  rests  primarily  upon  the  father,12 
but  in  case  of  his  death  upon  the  mother.13 

The  rights  of  a  natural  guardian  do  not  extend  to 
any  property  which  the  minor  may  receive  by  descent, 
devise,  gift,  or  which  he  may  have  in  his  own  right.14 
He  can  sell  no  property  belonging  to  his  child,15  nor 
can  he  bind  the  estate  of  his  child  by  any  contract  or 
agreement,  or  make  any  lease  of  his  realty  or  collect 

I  Rev.  Stats.,  c.  18,  §  93.  [1632] ;  L.  O.  L.,  §  7057;  Tiffany  v.  Wright, 
79  Xeb.  19,  112  X.  W.  311;  Terry  v.  Johnson,  73  Xeb.  653,  103  N.  W. 
319. 

8  Xine  v.  Starr,  8  Or.  49;  Town  of  Hudson  v.  Hills,  8  N.  H.  417; 
Alfred  v.  Makay,  36  Ga.  440. 

»  Rev.  Stats.,  c.  18,  §  38,  [1577];  L.  O.  L.,  §§  512,  513. 

10  Clemens  v.  Brillhart,  17  Neb.  335,  22  X.  W.  779;  Hammond  v. 
Corbett,  50  X.  H.  501. 

II  Courtright  v.  Courtright,  40  Mich.  633;  Cooper  v.  MeXamara,  92 
Iowa,  243,  60  X.  W.  522;  Trow  v.  Thomas,  70  Vt.  580,  41  Atl.  652. 

12  Porter  v.  Powell,  79  Iowa,  151,  44  X.  W.  295;  Alvey  v.  Hartwig 
(Md.),  67  Atl.  132. 

13  Missouri  Pac.  R.  R.  Co.  v.  Palmer,  55  Xeb.  559,  76  X.  W.  169. 

14  Myers  v.  McGavock.  39  Neb.  843,  58  X.  W.  522. 

15  Wells  v.  Steckleberg,  50  Xeb.  670,  70  N.  W.  242. 

(821) 


§  492  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

the  rents  and  profits  therefrom.16    He  may  accept  the 
delivery  of  a  deed  to  his  child.17 

§  492.    Testamentary  guardians. 

A  testamentary  guardian  is  one  appointed  by  the 
last  will  and  testament  of  a  surviving  parent  for  any 
of  their  minor  children,  whether  born  at  the  time  of 
the  making  of  the  will  or  afterward.  If  the  parents 
have  been  divorced,  the  one  to  whom  is  granted  the 
custody  of  the  children  can  appoint  a  testamentary 
guardian  during  the  lifetime  of  the  surviving  parent.18 
Like  an  executor,  he  derives  his  authority  from  the 
will,  but  his  appointment  must  be  approved  by  the 
court,  and  he  must  be  a  suitable  person.19  The  ap- 
pointment may  be  made  by  implication  as  well  as  by 
directly  designating  or  nominating  the  party.20  The 
right  to  such  appointment  cannot  be  assigned.21  If 
more  than  one  person  is  appointed,  on  the  death  of  one 
the  guardianship  passes  to  the  survivor.22 

A  testamentary  guardian  has  the  same  powers  and 
performs  the  same  duties  as  a  statutory  one.23  He  is 
required  to  give  a  bond  in  like  manner  and  with  like 
conditions  as  is  required  of  a  guardian  appointed  by 
the  court,  but  if  the  testator,  in  his  will  appointing 

18  Jones  v.  Jones,  46  Iowa,  466;  Fonda  v.  Van  Home,  15   Wend. 
(N.  Y.)  631;  Jackson  v.  Combs,  7  Cow.  (N.  Y.)  36. 

I?  Hall  v.  Cardell,  111  Iowa,  206,  82  N.  W.  503. 

is  Wilkinson  v.  Deming,  80  111.  342;  L.  O.  L.,  §  1316. 

19  In  re  La  Plant,  83  Minn.  366,  86  N.  W.  351. 

20  Balch  v.   Smith,   12  Neb.  437;   Capps  v.  Hickman,  97  111.  429; 
Desribes  v.  Wilmer,  69  Ala.  25. 

21  Balch  v.  Smith,  12  Neb.  437. 

22  Eywe  v.  Shaftsbury,  2  P.  Wms.  102. 

23  Eev.  Stats.,  c.  18,  §  98,  [1637];  L.  O.  L.,  §  1316. 

(822) 


Chap.  36]  GUARDIANSHIP.  §  493 

him,  shall  have  ordered  or  requested  that  such  bond 
shall  not  be  given,  none  shall  be  required  unless  from 
a  change  in  the  situation  or  circumstances  of  the 
guardian,  or  from  other  sufficient  cause,  the  court 
thinks  it  proper  to  demand  it.24 

§  493.    Appointment  of  guardian  of  a  minor. 

The  county  court  in  each  county,  when  it  shall  ap- 
pear necessary  or  convenient,  may  appoint  guardians 
to  minors  and  others,  being  residents  and  inhabitants 
of  the  same  county,  and  also  to  such  as  shall  reside 
without  the  state  and  have  an  estate  within  the  same.25 

Except  in  the  case  where  the  application  is  for  the 
appointment  of  a  guardian  of  a  nonresident  who  has 
property  in  this  state,  it  is  necessary,  in  order  to  give 
the  court  jurisdiction,  that  the  residence  of  the  minor 
be  within  the  county  in  which  the  application  is 
made.26 

The  residence  of  the  parents  or  of  those  standing  in 
loco  parentis  is  presumptively  the  residence  of  the 
minor,  though  he  may  be  actually  in  another  county 
or  state  when  the  application  is  made.27 

24  Eev.  Stats.,  c.  18,  §  99,  [1638];  L.  O.  L.,  §  1317. 

25  Rev.  Stats.,  c.  18,  §  90,   [1629];    L.    O.    L.,    §1311;    Monastes    v. 
Catlin,  6  Or.  122. 

26  Connell  v.  Moors,  70  Kan.  88,  78  Pac.  164;  In  re  Connor,  93  Neb. 
118,  139  N.  W.  834. 

27  In   re  Johnson,   87   Iowa,   130;    Modern   Woodmen   v.   Hester,   66 
Kan.   129,  71  Pae.  279;   Darden  v.  Wyatt,  15  Ga.  414.     There  is  au- 
thority to  the  effect  that  a  minor  who  has  no  parents  or  near  relatives 
may   have  a  guardian  appointed   in   the  county  in  which  he  is  last 
found.     Dampier  v.  McCall,  78  Ga.  607,  3  S.  E.  563. 

(823) 


§§494,495       PROBATE    AND    ADMINISTRATION.          [Chap.  36 

§  494.    Guardians  of  minors  who  have  no  estate. 

Whenever  a  parent  has  been  convicted  in  a  county 
court  of  the  offense  of  ill-treating  or  abusing  his  child, 
or  when  any  child  under  the  age  of  fourteen  years,  by 
reason  of  orphanage,  or  of  the  neglect,  crime,  drunken- 
ness or  other  vice  of  the  parents,  is  growing  up  with- 
out education  or  salutary  control,  or  in  circumstances 
exposing  such  child  or  children  to  lead  a  dissolute  or 
vicious  life,  the  court  may  order  such  child  or  children 
to  be  committed  to  the  custody  of  any  legally  incor- 
porated humane  society  or  society  for  prevention  of 
cruelty  to  children,  and  such  society  is  authorized  to 
receive  such  child  or  children  into  its  custody  and  to 
provide  care  and  education  in  some  suitable  family  or 
institution  of  instruction.28 

Under  the  above  statute  notice  to  the  parents  must 
be  given,  and  pending  the  hearing  the  court  may  order 
the  child  temporarily  removed  from  the  charge  of  the 
parent.29 

It  is  the  duty  of  peace  officers  to  cause  to  be  re- 
moved from  houses  of  ill-fame  any  minors  who  are 
harbored,  maintained  or  kept  therein,  though  children 
of  the  inmates.30  The  children  so  removed  may  be 
placed  by  the  county  court  in  the  control  of  a  humane 
society  or  other  discreet  and  suitable  person.31 

§  495.    To  whom  letters  may  issue. 

A  minor  over  fourteen  years  of  age  has  a  right  to 
nominate  a  guardian,  who,  if  approved  by  the  court, 

28  Rev.  Stats.,  c.  18,  §  132,  [1671]. 

29  Eev.  Stats.,  c.  18,  §  133,  [1672]. 
so  Crim.  Code,  §  222. 

si  Crim.  Code,  §  223. 

(824) 


Chap.  36]  GUARDIANSHIP.  §  495 

may  be  appointed  accordingly,32  but  if  his  nominee  is 
not  approved  by  the  court,  or  if  after  being  cited  he 
neglects  to  nominate  a  suitable  person,  or  if  he  is 
under  fourteen  years  of  age,  or  a  nonresident  of  the 
state,  the  court  may  issue  letters  to  any  suitable  and 
competent  person.33 

A  minor  over  fourteen  years  of  age  had  a  clear  right 
at  common  law  to  nominate  a  guardian,34  and  where 
he  is  under  that  age,  the  court  may  properly  consult 
his  wishes,  but  is  not  required  to  give  them  the  weight 
they  would  be  entitled  to  if  he  was  older.35 

The  nominee  should  be  appointed  unless  the  court 
finds  that  he  is  not  a  suitable  and  competent  person 
to  perform  the  duties  of  the  trust.  The  court  is  given 
no  discretion  in  the  matter  except  as  to  the  suitable- 
ness or  unsuitableness  of  the  party  nominated  by  the 
minor  over  fourteen  years  of  age.36 

The  natural  guardians,  other  things  being  equal,  are 
usually  considered  as  entitled  to  the  appointment.37 
They  may  consent  to  the  appointment  of  a  third 
party.38  But  if  they  ask  for  the  appointment,  it 
should  be  granted  them,  unless  it  appears  that  the  best 
interests  of  the  child  demand  that  they  issue  to  some- 
one else.39  However,  a  parent's  wishes  are  always 

32  Rev.  Stats.,  c.  18,  §  90,  [1629]. 

33  Rev.  Stats.,  c.  18,  §  91,  [1630] ;   L.   O.  L.,  §  1312. 

84  Sherman   v.   Ballou,   8   Cow.    (N.   Y.)    304;   Palmer  v.   Oakley,   2 
Doug.   (Mich.)  433,  47  Am.  Dec.  41. 

35  Walton  v.  Twiggs,  91  Ga.  90,  16  S.  E.  313. 

36  Lunt  v.  Aubens,  39  Me.  392;  Arthur's  Appeal,  1  Grant  (Pa.),  55. 

37  Weldon  v.  Keen,  37  N.  J.  Eq.  251;   People  v.  Wilcox,  22  Barb. 
(N.  Y.)   178;  Johnson  v.  Kelley,  44  Ga.  485;  L.  O.  L.,  §  1310. 

38  Wirsig  v.  Scott,  79  Neb.  322,  112  N.  W.  655. 

30  In  re  McChesney,  lOU   Wis.  315,  82  JI.  W.  149;  In  re  Welch,  74 

N.  Y.  290. 

(825) 


§  495  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

properly  considered  by  a  court  in  determining  to  whom 
letters  may  issue.40 

Though  no  one  outside  of  parents  have  any  prefer- 
ence, letters  of  guardianship  of  an  orphan  should  issue 
to  some  near  relative  who  is  otherwise  competent.41 

In  Oregon  the  nearest  relative  is  given  preference.42 

A  nonresident  may  be  appointed,  but  such  appoint- 
ment, however  may  not  be  a  wise  one,  as  he  is  without 
the  jurisdiction  of  the  court,  and  difficulty  may  be  met 
with  in  enforcing  orders  and  decrees.43 

At  common  law  a  corporation  was  not  a  competent 
guardian.44  By  statute  a  legally  incorporated  humane 
society,  or  society  for  the  prevention  of  cruelty  to 
children,  is  empowered  to  become  guardian  of  minor 
children  in  accordance  with  the  general  provisions  of 
law  applicable  to  the  guardianship  of  minors.  The 
powers  and  duties  of  such  society  as  guardian  are 
exercised  by  its  officers,45  and  a  trust  company  author- 
ized by  its  articles  of  incorporation  may  act  as 
guardian  of  parties  under  letters  issued  from  the 
county  court  of  the  county  in  which  it  has  its  principal 
office.46 

In  Oregon  any  authorized  trust  company  may  be  ap- 
pointed.47 

40  Page  v.  Hodgdon,  63  N.  H.  53;  Succession  of  Le  Blanc,  37  La 
Ann.  546;  Cowles  v.  Cowles,  8  111.  435. 

41  Goss  v.  Stone,  63  Mich.  319,  29  N.  W.  735;  Woodruff  v.  Snoover 
(N.  J.  Eq.),  45  Atl.  980. 

42  L.  O.  L.,  §  1310. 

43  Finney  v.  State,  9  Mo.  227;  Berry  v.  Johnson,  53  Me.  401. 
4*  In  re  Eice,  42  Mich.  528,  4  N.  W.  284. 

45  Rev.  Stats.,  c.  18,  §  131,  [1670]. 

46  Eev.  Stats.,  c.  14,  §  195,  subd.  6,  [743]. 

47  Laws  1913,  p.  723. 

(826) 


Chap.  36]  GUARDIANSHIP.  §  496 

The  granting  of  letters  of  guardianship  to  an  execu- 
tor or  administrator  of  an  estate  in  which  the  ward  has 
a  beneficial  interest,  unless  the  former  is  designated 
as  a  testamentary  guardian,  is  not  to  be  commended, 
and  in  many  states  is  prohibited  by  statute.  In  some 
cases  it  might  be  for  the  best  interest  of  the  ward,  but 
in  others  conflicting  interests  make  it  desirable  that 
the  same  person  should  not  act  in  two  capacities. 

There  is  no  duty  devolving  upon  the  county  court  of 
greater  importance  than  the  appointment  of  a  suitable 
person  as  guardian  of  a  minor.  In  case  both  his  par- 
ents are  dead,  his  welfare,  and  his  success  or  failure 
in  life  largely  depend  on  the  character  and  ability  of 
the  person  appointed  to  take  charge  of  his  person  and 
business  affairs.  The  act  of  the  court  in  issuing  let- 
ters will  not  be  disturbed  on  the  ground  that  some 
other  person  should  be  appointed,  unless  there  is  an 
obvious  abuse  of  authority.48 

§  496.  Procedure  for  appointment  of  guardian  of 
minor. 

The  county  court  acquires  jurisdiction  over  a  guard- 
ianship matter  by  the  filing  of  a  petition;  if  the  minor 
is  over  fourteen  years  of  age,  he  may  file  it  himself, 
designating  the  person  whom  he  desires  to  have  ap- 
pointed, and  reciting  the  necessary  facts  which  make 
an  appointment  necessary.49 

If  he  is  under  fourteen,  it  is  usually  made  by  some 
competent  interested  person,  though  the  court  acquires 
jurisdiction  if  signed  in  his  name.50  A  third  party 

48  White  v.  Pomeroy,  7  Barb.   (N.  Y.)   640. 

49  Kev.  Stats.,  c.  18,  §§  89,  90,  [1628],  [1629]. 

50  Seward  v.  Didier,  16  Neb.  59,  20  N.  W.  12. 

(827) 


§  496  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

may  make  the  application  if  the  minor  is  over  fourteen, 
and  if  the  minor  resides  more  than  ten  miles  from  the 
place  of  holding  court,  he  should  sign  a  written  nomi- 
nation of  guardian  before  a  justice  of  the  peace,  which 
is  certified  to  the  county  judge  and  has  the  same  effect 
as  if  made  in  the  presence  of  the  court.51 

The  application  for  the  guardianship  of  a  nonresi- 
dent minor  may  be  made  by  any  person  interested  in 
his  estate,  in  expectancy  or  otherwise,  and  should  set 
out  the  existence  of  an  estate  requiring  the  care  of  a 
guardian.52 

Form  No.  217. 
NOMINATION  OF  GUAKDIAN. 

To  the  County  Judge  of County,  Nebraska: 

I,  C.  D.,  a  minor  of  the  age  of  fifteen  years,  hereby  nominate  C.  D., 

of  the  village  of  ,  of  said  county,  for  guardian  of  my  estate, 

and  request  that  letters  of  guardianship  issue  to  him. 

Dated  this  day  of ,  19—. 

(Signed)     A.  B. 
£>tate  of  Nebraska, 

County, — an. 

I,  E.  F.,  a  justice  of  the  peace  in  and  for  township,  in  said 

county,  do  heieby  certify  that  the  foregoing  instrument  was  executed 
by  the  said  A.  B.  in  my  presence,  and  acknowledged  by  her  as  her  free 
act  and  deed. 

Dated  this day  of  ,  19 — . 

(Signed)     E.  F., 
Justice  of  the  Peace. 
Form  No.  218. 

PETITION  FOR  APPOINTMENT  OF  GUARDIAN  OF  AN  ORPHAN 
UNDER  FOURTEEN. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 
A.  B.  is  a  resident  of  said  county  and  an  orphan,  his  father,  C.  B., 

51  Rev.  Stats.,  c.  18,  §  92,  [1631];  L.  O.  L.,  §  1312. 

52  Rev.  Stats.,  c.  18,  §  122,  [1661];  L.  O.  L.,  §  1336. 

(828) 


Chap.  36]  GUARDIANSHIP.  §  496 

having  died  on  the  day  of ,  19 — ,  and  his  mother,  E.  B., 

on  the  day  of  ,  19 — ;  that  said  A.  B.  is  three  years  of 

age,  and  is  possessed  of  personal  estate  of  the  value  of dollars, 

consisting  of    [describe   character   of  personalty],  and  real  estate   of 

the  value  of  dollars,  as  follows   [describe  real  estate] ;  that  it 

is  necessary  that  a  suitable  and  competent  person  be  appointed  guar- 
dian of  the  person  and  estate  of  said  A.  B.  during  his  minority;  that 
G.  H.  is  a  suitable  and  competent  person  to  act  as  guardian  of  said 
infant,  and  has  consented  to  act  as  such  guardian  if  appointed. 

(Signed)     C.  D. 
[Add  verification.] 

Form  No.  219. 

PETITION     FOR     APPOINTMENT    OF    OTHER    PERSON    THAN 
PARENT  AS  GUARDIAN  WHILE  PARENT  IS  LIVING. 

[Title  of  Cause  and  Court.] 

Your  petitioner  respectfully  represents  unto  the  court  that  A.  B. 
is  a  resident  of  said  county,  and  a  minor  under  the  age  of  fourteen, 
to  wit,  of  the  age  of  ten  years;  that  said  A.  B.  is  possessed  of  the 
following  described  personalty  [describe  personalty],  of  the  value  of 
dollars,  and  is  seised  in  her  own  right  of  the  following  de- 
scribed real  estate  [describe  real  estate],  of  the  value  of  

dollars;  that  the  residence  of  D.  B.,  the  father  of  said  minor,  is 
unknown,  and  he  has  not  resided  with  or  supported  his  family  for  the 
period  of  five  years  last  past;  that  C.  B.,  the  mother  of  said  A.  B., 
is  a  woman  of  bad  reputation  for  chastity,  and  is  now  an  inmate 
of  a  house  of  prostitution  in  said  county,  and  is  not  a  suitable  person- 
to  have  charge  of  the  estate  or  the  custody  of  the  person  of  said 
minor,  and  the  best  interests  of  said  minor  demand  that  a  suitable 
and  competent  person  be  appointed  guardian  of  her  person  and  estate, 
and  that  she  be  entirely  removed  from  the  custody  and  control  of  her 
mother,  said  C.  B. 

That  G.  H.,  of  said  county,  is  a  suitable  and  competent  person  to 
act  as  such  guardian,  and  has  consented  to  act  as  such  if  appointed. 

Your  petitioner  therefore  prays  that  a  day  may  be  set  for  the 
hearing  of  said  petition,  and  notice  given  to  said  C.  B.,  and  that  upon 
the  hearing  thereof,  said  G.  H.  may  be  appointed  guardian  of  said 
minor. 

Dated  this  day  of  ,  19 — . 

(Signed)     C.  D. 

[Add  verification.] 

(829) 


§  497  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

Form  No.  220. 

PETITION  BY  MINOR  OVER  FOURTEEN  YEARS  OF  AGE  FOR 
APPOINTMENT  OF  GUARDIAN. 

[Title  of  Cause  and  Court.] 

Your  petitioner,  A.  B.,  respectfully  represents  nnto  the  court  that 
he  is  a  resident  of  the  county  and  state  aforesaid,  and  is  sixteen  years 
of  age,  and  a  son  of  F.  B.,  late  of  said  county,  deceased;  that  your 
petitioner  is  possessed  of  personal  estate  of  the  value  of  -  —  dol- 
lars, and  is  seised  in  his  own  right  of  real  estate  of  the  value  of 
dollars,  described  as  follows:  [Describe  real  estate.] 

Your  petitioner  is  desirous  of  the  appointment  of  a  guardian  of 
his  property  during  his  minority,  and  hereby  nominates  his  mother, 
C.  B.,  of  said  county,  for  such  guardian;  that  said  C.  B.  is  a  suitable 
and  competent  person  to  act  as  such  guardian,  and  has  consented  to 
act  as  such  if  appointed. 

Your  petitioner  therefore  prays  for  the  appointment  of  said  C.  B. 
as  guardian. 

Dated  this  day  of  ,  19—. 

(Signed)     A.  B. 

[Add  verification.] 

§  497.    Hearing. 

The  appointment  of  a  guardian  is  a  proceeding  in 
rem.53  In  case  of  a  nonresident,  notice  is  required  to 
be  given  to  all  persons  interested  as  the  court  may 
direct.54  In  other  cases  no  notice  is  required  by  stat- 
ute. If  the  appointment  of  some  other  party  than  a 
parent  is  sought,  the  law  clearly  contemplates  that 
notice  should  be  given  the  natural  guardian  and  an 
opportunity  be  afforded  him  to  defend  the  implied 
charge  that  he  is  unfitted  to  take  charge  of  his  child's 
property.55 

53  In  re  Thomsen,  1  Neb.  Unof.  751,  95  N.  W.  805. 

54  Rev.  Stats.,  c.  18,  §  122,  [1661];  L.  0.  L.,  §  1336. 

55  Witasig  v.  Scott,  79  Neb.  322,  112  N.  W.  655;  Tong  v.  Marvin, 
26  Mich.  35;  Senseman's  Appeal,  21  Pa.  331. 

(830) 


Chap.  36]  GUARDIANSHIP.  §  497 

In  the  case  of  both  residents  and  nonresidents,  a 
hearing  should  be  had  and  evidence  introduced  show- 
ing the  necessity  for  the  grant  of  letters.  It  must  be 
shown  that  the  domicile  of  a  minor,  unless  he  be  a  non- 
resident, is  within  the  county  where  the  petition  is 
filed.  The  presumption  of  law  that  the  residence  of 
the  parent  is  the  residence  of  the  child  is  not  conclu- 
sive, and  may  be  overcome  by  proof  of  facts  and  cir- 
cumstances showing  a  different  condition.56 

If  it  appears  that  the  minor  is  over  fourteen  years 
of  age  and  has  not  nominated  a  guardian,  he  should 
be  given  such  opportunity,  and  should  also  be  allowed 
to  do  so  in  case  his  nominee  refuses  to  accept  or  is 
found  unsuitable.  Though  not  required  by  statute, 
the  minor  ought  to  be  personally  present  in  court,  and 
this  seems  to  be  imperative  where  he  is  over  fourteen 
and  has  not  nominated  a  guardian. 

Form  No.  221. 
ORDER  FOR  APPOINTMENT  OF  GUARDIAN  OF  A  MINOR. 

[Title  of  Cause  and  Court.] 

Xow,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon  the  petition  of  C.  D.  for  the  appointment  of  G.  H.  as 
guardian  of  the  person  and  estate  of  A.  B.,  a  minor  under  fourteen 
years  of  age,  whose  parents  are  both  dead;  and  it  satisfactorily 
appearing  to  the  court  that  G.  H.  is  a  resident  of  said  county,  and  a 
proper  person  to  have  the  care  and  custody  of  the  person  and  estate 
of  the  said  A.  B.,  and  that  it  is  necessary  that  a  guardian  should  be 
appointed  for  him:  It  is  therefore  ordered  by  the  court  that  the  said 
G.  H.  be  and  he  hereby  is  appointed  guardian  of  the  said  A.  B.  upon 

his  giving  bond  in  the  sum   of  dollars,  with  two  sureties,  in 

manner  and  form  as  provided  by  law,  and  subject  to  the  approval  of 
the  court. 

56  McNish  v.  State,  74  Neb.  261,  104  N.  W.  186;  Wirsig  v.  Scott, 
79  Neb.  322,  112  N.  W.  655. 

(831) 


§  498  PEOBATE  AND  ADMINISTRATION.  [Chap.  36 

§  498.    Appointment  of  guardian  of  an  insane  or  in- 
competent person. 

When  the  relatives  or  friends  of  an  insane  person,  or 
of  any  person  who  by  reason  of  extreme  old  age  or  other 
cause  is  mentally  incompetent  to  take  charge  of  himself 
and  his  property,  shall  apply  to  the  county  court  to  have 
a  guardian  appointed  for  him,  the  court  shall  cause 
a  notice  to  be  given  to  the  supposed  insane  or  incom- 
petent person  of  the  time  and  place  fixed  for  the  hear- 
ing of  the  proceeding,  not  less  than  fourteen  days  from 
the  time  appointed.57 

Ten  days'  notice  is  required  in  Oregon. 

If  a  person  has  been  declared  insane  by  the  commis- 
sioners of  insanity  and  no  one  applies  to  have  a 
guardian  appointed  for  him  for  thirty  days  thereafter, 
it  is  the  duty  of  the  clerk  of  the  district  court  to  make 
application  to  the  county  court  of  his  county  to  ap- 
point a  guardian  for  such  insane  person.58 

A  suitable  person  or  a  trust  company  which  is  duly 
authorized  to  act  as  such  may  be  appointed  guardian 
of  an  incompetent  person. 

Form  No.  222. 

PETITION  FOB  APPOINTMENT  OF  GUARDIAN  OF  AN  INSANE 
OE  INCOMPETENT  PEESON. 

[Title  of  Cause  and  Court.] 
Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

A.  B.  is  a  resident  of  said  county,  and  of  the  age  of  years; 

that  petitioner  is  a  daughter  of  said  A.  B. ;   that  said  A.  B.  is  pos- 
sessed of  personal  property  consisting  of  [state  nature  of  personalty], 

of  the  value  of  dollars,  and  is  seised  of  real  estate  described 

as  follows,   and   of  the   value   of  dollars;   that  by  reason   of 

67  Eev.  Stats.,  c.  18,  §  101,  [1640];  L.  O.  L.,  §§  1319,  1320. 
58  Eev.  Stats.,  e.  18,  §  102,  [1641]. 

(832) 


Chap.  36]  GUARDIANSHIP.  §  498 

advanced  age  and  mental  and  physical  weakness,  said  A.  B.  is  not 
competent  to  take  charge  of  and  manage  said  property;  [that  said 

A.  B.  was  on  the  -> day  of  ,  19 — ,  by  the  commissioners 

of  insanity  of  said  county,  duly  adjudged  an  insane  person,  and  is 
now  and  ever  since  said  date  has  been  insane  and  mentally  incom- 
petent to  manage  and  control  his  estate]. 

That  G.  H.,  of  said  county,  is  a  suitable  and  competent  person  to 
act  as  guardian  of  said  A.  B.,  and  has  consented  to  act  as  such  guard- 
ian if  appointed. 

Your  petitioner  therefore  prays  that  a  day  may  be  set  for  the 
hearing  of  said  petition,  and  notice  thereof  given  the  said  A.  B.,  and, 
upon  the  hearing  thereof,  said  G.  H.  be  appointed  guardian  of  said 
incompetent  person. 

Dated  this  day  of  ,  19 — . 

[Add  verification,  Form  No.  5.] 

Form  No.  223. 
ORDER  FIXING  DATE  OF  HEARING. 

[Title  of  Cause  and  Court.] 

On  reading  and  filing  the  petition,  duly  verified,  of  C.  D.,  praying 
for  the  appointment  of  a  guardian  of  A.  B.  for  the  reason  that  said 
A.  B.  is  an  incompetent  person,  it  is  ordered  that  said  petition  be 

heard  at  the  county  court  room  in  the  city  of  ,  in  said  county, 

on  the  day  of  ,   19 — ,  and  that  notice  of  said  hearing 

be  personally  served  on  the  said  A.  B.,  as  required  by  law. 

Dated  this  day  of  ,  19—. 

(Signed)     J.  K., 

County  Judge. 
Form  No.  224. 

NOTICE     OF    HEARING     PETITION    FOR    APPOINTMENT     OF 

GUARDIAN. 

State  of  Nebraska, 
County, — ss. 

To  A.  B.: 

You   are   hereby   notified   that   on   the  day   of  ,   19 — , 

C.  D.  filed  his  petition  in  the  county  court  of  said  county  praying  for 

the   appointment   of   a   guardian    of   your   person   and   estate   for   the 

reason  that  you  are  an  incompetent  person.     You  are  further  notified 

53— Pro.  Ad.  (833) 


§§499,500       PKOBATE    AND    ADMINISTRATION.          [Chap.  33 

that  said  petition  will  be  heard  at  the  county  court  room  in  the  city 
of  ,  in  said  county,  on  the  day  of  ,  19 — . 

Dated  this  day  of  ,  19—. 

(Seal)  (Signed)     J.  K, 

County  Judge. 

§  409.    Temporary  guardian. 

When  application  is  made  for  the  appointment  of  a 
guardian  of  an  incompetent  person,  and  it  appears  to 
the  court  that  special  reasons  exist  making  it  neces- 
sary for  someone  to  look  after  the  estate  immediately, 
the  court  may  appoint  a  temporary  guardian  without 
service  of  notice.  His  duties  are  to  collect  and  con- 
serve the  assets  until  the  regular  appointment  is 
made.59 

§  500.    Hearing. 

The  county  court  acquires  jurisdiction  of  the  pro- 
ceedings for  the  appointment  of  a  guardian  of  an  in- 
competent or  insane  person  by  the  filing  of  a  proper 
petition  and  service  of  notice.60  He  cannot  waive 
notice  of  hearing,61  and  even  though  he  be  personally 
present  in  court,  unless  it  appears  that  notice  has  been 
served  on  him,  the  court  is  without  jurisdiction  to  ap- 
point a  guardian.62  If  the  party  has  been  previously 
adjudged  insane,  irregularities  in  the  proceedings  in 
which  he  was  so  adjudged  cannot  be  raised  in  the 
proceeding  for  the  appointment  of  a  guardian.63 

59  Bumpus  v.  French,  179  Mass.  131,  60  N.  E.  414. 

60  North  v.  Joslin,  59  Mich.  624,  26  N.  W.  810;  Winslow  v.  Troy, 
97  Me.  130,  53  Atl.  1008. 

61  Prante  v.  Lompe,  77  Neb.  377,  109  N.  W.  496. 

62  Winslow  v.  Troy,  97  Me.  130,  53  Atl.  1008. 

63  Sprigg  v.  Stump,  8  Fed.  207. 

(834) 


Chap.  36]  GUARDIANSHIP.  §  500 

The  party  is  entitled  to  a  full  hearing.  The  next  of 
kin  or  relatives  may  appear  and  contest  the  applica- 
tion, or  take  such  part  as  they  believe  to  be  for  his 
interests  and  the  conservation  of  his  estate.64  Where 
he  does  not  personally  appear,  or  is  not  represented  by 
counsel,  it  is  proper  for  the  court  to  appoint  a 
guardian  ad  litem  to  look  after  his  interests.65 

There  are  two  classes  of  cases  where  a  guardian  of 
an  adult  may  be  appointed.  One  comprises  the  insane 
and  the  other  those  mentally  incompetent  from  other 
causes. 

Except  in  cases  where  unquestioned  insanity  exists, 
a  court  should  act  cautiously  in  taking  the  custody  and 
control  of  a  man's  property  out  of  his  hands  and  plac- 
ing it,  together  with  the  custody  of  his  person,  in  the 
hands  of  another.  It  is  not  necessary  that  the  party 
be  either  an  imbecile  or  idiot,  nor  is  the  court  justified 
in  making  the  appointment  where  the  only  showing  is 
that  he  has  exhibited  poor  judgment.  If  it  appears 
that  he  is  in  need  of  care  and  protection  and  is  men- 
tally incapable  of  acting  with  fair  and  provident 
management,  and  is  thus  liable  to  be  robbed  of  his 
estate,  his  mental  incapability  calls  for  the  same  pro- 
tection as  insanity.66 

64  Prante  v.  Lompe,  77  Neb.  377,  109  N.  W.  496 ;  Tierney  v.  Tierney, 
81  Neb.  894,  115  N.  W.  764. 

65  See  Boden  v.  Mier,  71  Neb.  191,  98  N.  W.  701;  Laws  1913,  p.  595. 

66  ln  re  Streiff,  119  Wis.  566,  97  N.  W.  189;  Schick  v.  Stuhr,  120 
Iowa,  396,  94  N.  W.  915;  In  re  Estate  of  Leonard,  95  Mich.  295,  54 
N.  W.  1082. 

,(835) 


§  501  PEOBATE  AND  ADMINISTRATION.  [Chap.  36 

Form  No.  225. 

ORDEE    FOE    APPOINTMENT    OF    GUARDIAN   OF   AN   INCOM- 
PETENT PERSON. 

[Title  of  Cause  and  Court.] 

Now,   on  this  day  of  ,   19 — ,  this  cause  came   on  for 

hearing  upon  the  petition  of  C.  D.  for  the  appointment  of  G.  H.  as 
guardian  of  A.  B.,  an  incompetent  person,  and  the  evidence,  and  was 
submitted  to  the  court;  and  it  appearing  to  the  court  that  personal 
service  of  the  time  and  place  of  the  hearing  of  said  petition,  within 
the  time  required  by  law,  has  been  had  upon  the  said  A.  B.,  and  it 
further  appearing  that  said  A.  B.  is  not  possessed  of  sufficient  mental 
capacity  to  have  the  care,  custody,  and  control  of  his  person  and 
estate,  and  that  the  best  interests  of  said  A.  B.  require  that  a  guardian 
be  appointed  for  him:  It  is  therefore  [balance  as  in  Form  No.  221]. 

§  501.    Guardian  for  spendthrift. 

When  any  person  by  excessive  drinking,  or  by 
gambling,  idleness  or  debauchery  of  any  kind,  shall 
so  spend,  waste  or  lessen  his  estate  as  to  expose  him- 
self or  family  to  danger  of  want  or  suffering,  or  the 
county  to  the  charge  or  expense  for  the  support  of 
himself  or  family,  any  officer  having  charge  of  the 
poor  of  the  county,  or  justice  of  the  peace  of  the 
county  in  which  the  spendthrift  resides,  may  present 
a  complaint  to  the  county  court,  setting  forth  the 
facts  and  circumstances  of  the  case  and  praying  to 
have  a  guardian  appointed  for  him.67  The  object  in 
making  the  appointment  is  for  the  benefit  and  protec- 
tion of  the  party  and  his  family,  and  the  prospective 
liability  of  the  county  for  his  support  is  only  sec- 
ondary.68 

67  Rev.  Stats.,  c.  18,  §§  104,  105,  [1643],   [1644];  L.  O.  L.,  §  1322. 

68  Cushing  v.   Hale,   8   Vt.   38.     The   statute   is   sometimes   resorted 
to  for  the  purpose   of  placing  a   restraint  on   the   expenditures  of  a 
party  who  has  come  into  the  possession  of  a   considerable   sum   and 

(836) 


Chap.  36]  GUARDIANSHIP.  §  501 

Personal  notice  must  be  given  the  alleged  spend- 
thrift at  least  ten  days  before  the  date  set  for  the 
hearing.69  If  on  the  hearing  the  court  finds  that  the 
case  comes  within  the  statute,  letters  should  issue, 
whether  the  alleged  spendthrift  personally  appears  or 
not.70 

Form  No.  226. 
COMPLAINT  FOB  SPENDTHRIFT. 

State  of  Nebraska, 
County, — ss. 

The  complaint  of  C.  D.,  a  justice  of  the  peace  in  and  for  said 
county,  taken  on  oath  before  me,  J.  K.,  county  judge  of  said  county, 
who,  being  first  duly  sworn,  oh  oath  says  that  one  A.  B.,  a  resident 
of  said  county,  is  possessed  of  personal  estate  of  the  estimated  value 

of  dollars,  and  is  seised  of  the  following  described  real  estate 

[describe  real  estate],  which  is  of  the  value   of  dollars;  that 

during  the  six  months  last  past  the  said  A.  B.  has  become  addicted 
to  the  habit  of  gambling  and  drinking  intoxicating  liquors  to  excess, 
and  is  wasting  and  squandering  his  estate  by  gambling  and  betting, 
and  devotes  no  time  whatever  to  his  business  and  the  care  and  pres- 
ervation of  his  estate,  and  is  so  spending  and  lessening  his  estate 
as  to  expose  himself  and  his  family,  which  family  consists  of  his 
wife,  C.  B.,  and  two  minor  children, — F.  B.,  aged  5  years,  and  M.  B., 
aged  9  years, — to  danger  of  want  or  suffering,  or  the  county  to  a 
charge  or  expense  for  the  support  of  him,  said  A.  B.,  and  his  said 
family;  that  the  best  interests  of  him,  said  A.  B.,  and  of  said  county 

of  ,  demand  that  some  suitable  person  be  appointed  guardian 

of  him,  said  A.  B. 

That  G.  H.  is  a  resident  of  said  county,  and  a  suitable  and  compe- 
tent person  to  act  as  such  guardian,  and  has  consented  to  act  as 
such  if  appointed. 

(Signed)     C.  D. 

is  wasting  it  by  "fast  living,"  though  he  have  no  one  dependent  on 
him  for  support. 

69  Eev.  Stats.,  c.  18,  §  106,  [1645];  L.  O.  L.,  §  1323. 

70  Eev.  Stats.,  c.  18,  §  106,  [1645];  L.  O.  L.,  §  1323;  Young  T.  Young, 
87  Me.  44,  32  Atl.  782. 

(837) 


§  502  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

Subscribed   in   my   presence   and   sworn   to   before    me   this   

day  of ,  19 — . 

(Seal)  (Signed)     C.  F.  D., 

Notary  Public. 

[For  order  for  notice,  and  notice,  see  Forms  Nos.  223  and  224.] 

Form  No.  227. 

ORDER    FOR    APPOINTMENT     OF     GUARDIAN    FOR    SPEND- 
THRIFT. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  upon   the  complaint   of   A.  B.   H.,   a  justice  of  the  peace   in 

and  for  the  city  of  ,  in  said   county,  alleging  that  one  A.  B., 

of  said  county,  is  a  spendthrift,  and  the  evidence,  and  was  submitted 
to  the  court.  Upon  consideration  whereo'f,  the  court  finds  that  per- 
sonal notice  of  the  time  and  place  set  by  the  court  for  the  hearing 
on  said  complaint  was  given  to  said  A.  B.  as  required  by  law;  and 
it  further  appearing  to  the  court  that  the  said  A.  B.  is  so  wasting 
his  estate  by  gambling  and  debauchery  as  to  expose  himself  and  his 
family  to  danger  of  want  and  suffering,  or  the  said  county  of  - 
to  a  charge  and  expense  for  the  support  of  himself  and  his  family, 
and  that  the  best  interests  of  the  said  A.  B.  demand  that  a  guardian 
be  appointed  for  him:  It  is  therefore  [balance  as  in  Form  No.  221]. 

§  502.    Contracts   of   spendthrifts   pending   appoint- 
ment of  guardians. 

"  After  the  order  for  notice  has  been  issued,  the  com- 
plainant may  cause  a  copy  of  the  complaint,  with  the 
order  for  such  notice,  to  be  filed  in  the  office  of  the 
county  clerk  of  the  county,  and  a  minute  thereof  be 
entered  on  the  lien  book  of  said  office;  and  if  a 
guardian  shall  be  appointed  on  such  application,  all 
contracts,  except  for  necessaries  at  reasonable  prices, 
and  all  gifts,  sales,  or  transfers  of  real  or  personal 
estate,  made  by  such  spendthrift,  after  the  filing  of  a 
copy  of  such  complaint  and  order,  as  aforesaid,  and 
(838) 


Chap.  36]  GUARDIANSHIP.  §§503,504 

before  the  termination  of  the  guardianship,  shall  be 
utterly  void."71 

§  503.  Nature  of  order  appointing  or  refusing  to  ap- 
point a  guardian. 

It  is  a  question  of  some  doubt  whether  the  order  of 
the  county  court  appointing  or  refusing  to  appoint  a 
guardian  for  a  minor  is  subject  to  appeal  to  the  dis- 
trict court.  In  a  number  of  states  it  has  been  held 
that  appeal  does  not  lie.72  The  only  cases  where  ap- 
peals are  allowed  appear  to  be  where  it  is  permitted  by 
statute. 

In  the  case  of  an  incompetent  person  or  spendthrift 
the  person  for  whom  a  guardian  is  appointed  may 
take  an  appeal  from  the  order,  and  an  heir  apparent 
or  presumptive  may  have  the  matter  reviewed  by  the 
district  court  by  appeal  or  writ  or  error.73 

§  504.    Guardian's  bond. 

Every  guardian,  whether  having  the  custody  of  the 
estate  of  a  minor,  incompetent  person  or  spendthrift, 
is  required  to  give  a  bond  with  surety  or  sureties  in 
such  sum  as  the  court  shall  order,  with  condition  as 
follows : 

71  Rev.  Stats.,  c.  18,  §  107,  [1646] ;  L.  0.  L.,  §  1324. 

72  Adams  v.  Specht,  40  Kan.  377,  19  Pac.  812;  Ramsay  v.  Thomp- 
son, 71  Md.  315,  18  Atl.  592;  Cramer  v.  Corbis,  31  111.  259. 

73  Prante  v.  Lompe,  77  Neb.  377,  109  N.  W.  496;  Tierney  v.  Tierney, 
81  Neb.  193,  115  N.  W.  764.     In  the  latter  case,  which  was  an  appeal 
from  an  order  refusing  to  appoint  a  guardian  for  an  alleged  incom- 
petent, it   was   held   that   section    1526,   Revised   Statutes,   applied   to 
guardianship   matters,   and  that   consequently   the   heirs   presumptive 
had  a  right  to  appeal  as  aggrieved  parties.     Under  the  same  reasoning 
it  would  look  as  though   an   appeal   would  lie  from  the   appointment 
of  a  guardian  for  a  minor. 

(839) 


§  504  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

First.  To  make  a  true  inventory  of  all  the  real  and 
personal  estate  of  the  ward  that  shall  come  into  his 
possession  or  knowledge,  and  to  return  the  same  into 
court  as  the  law  directs. 

Second.  To  dispose  of  and  to  manage  all  such  es- 
tate and  effects  according  to  law,  and  for  the  best  in- 
terests of  the  ward,  and  to  faithfully  discharge  his 
trust  as  such  guardian. 

Third.  To  render  an  account  of  the  property  of  the 
ward  in  his  hands,  including  the  proceeds  of  the  real 
estate  that  may  be  sold  by  him,  and  of  the  manage- 
ment and  disposition  of  such  property,  within  one 
year  after  his  appointment,  and  at  such  other  times 
as  the  court  shall  direct. 

Fourth.  At  the  expiration  of  his  trust,  to  settle  his 
accounts  with  the  court,  or  with  the  ward  or  his  legal 
representatives,  and  to  pay  over  and  deliver  all  the 
estate  and  effects  remaining  in  his  hands  or  due  from 
him  on  such  settlement  to  the  person  or  persons  who 
shall  be  lawfully  entitled  to  receive  them.74 

In  Oregon  the  bond  runs  to  the  state. 

A  testamentary  guardian  is  not  required  to  give  a 
bond  when  the  testator  in  the  will  shall  have  ordered 
or  requested  that  such  bond  be  not  given,  except, 
owing  to  a  change  in  the  circumstances  or  situation  of 
the  guardian,  or  for  other  sufficient  cause,  the  court 
shall  think  proper  to  require  it.75  No  bond  is  required 
of  a  natural  guardian.76  The  courts  are  very  liberal 
in  the  construction  of  a  guardian's  bond,  so  as  to  bring 

74  Rev.  Stats.,  e.  18,   §  96,  [1635] ;  L.  O.  L.,  §  1315. 

75  Rev.  Stats.,  c.  18,  §  98,  [1637];  L.  O.  L.,  §  1317. 

76  Westbrook  v.  Comstock,  Walk.  (Mich.)  314. 

(840) 


Chap.  36]  GUARDIANSHIP.  §  504 

it  within  the  requirements  of  the  statute.  A  failure 
to  give  the  ward's  name  in  full,77  failure  to  insert  a 
penalty,78  and  a  failure  to  set  out  the  facts  that  the 
guardian  has  been  duly  appointed,79  have  been  held 
not  to  invalidate  guardians'  bonds.  The  substitution 
of  an  executor's  or  administrator's  bond  for  that  of  a 
guardian's,  inserting  the  name  of  the  ward  for  the 
deceased,  has  been  held  in  effect  no  bond  at  all.80  A 
guardian  must  also,  before  entering  upon  the  duties  of 
his  trust,  take  the  official  oath.81 

Form  No.  228. 
GUARDIAN'S  BOND. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  of  the  county  of 
-,  and  state  of  Nebraska,  as  principal,  and  C.  D.  and  E.  F.,  of  the 


same  place,  as  sureties,  are  held  and  firmly  bound  unto  the  county 

judge  of county,  Nebraska,  in  the  penal  sum  of dollars, 

for  which  payment  well  and  truly  to  be  made  we  do  hereby  bind  our- 
selves, our  heirs,  executors,  administrators,  and  assigns,  jointly  and 
severally,  by  these  presents. 

Dated  this  day  of  ,  19 — . 

Whereas,  said  A.  B.  has  been  appointed  by  said  court  guardian  of 

N.  M.,  a  minor  of  the  age  of  years  [an  incompetent  person; 

or,  spendthrift],  and  has  signified  his  acceptance  of  his  said  trust: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
above-bound  A.  B.  shall  make  a  true  inventory  of  all  the  real  and 
personal  estate  of  the  said  C.  D.  which  shall  come  into  his  possession 

or  knowledge,  and  return  the  same  to  the  county  court  of  

county  within  thirty  days  from  this  date,  and  shall  dispose  of  and 
manage  all  such  estate  and  effects  of  said  C.  D.  according  to  the  law 
and  the  best  interests  of  said  ward,  and  faithfully  discharge  his  trust 

77  Turner  v.  Alexander,  41  Ark.  254;   State  v.  Eichardson,  29  Mo. 
App.  595. 

78  State  v.  Britton,  102  Ind.  214,  1  N.  E.  617. 

79  Pratt  v.  Wright,  13  Gratt.   (Va.)   175. 

80  Hayden  v.  Smith,  -49  Conn.  83. 

81  Rev.  Stats.,  c.  18,  §  114,  [1653]. 

(841) 


§  504  PROBATE  AND  ADMINISTRATION.  [Chap.  36 

as  such  guardian,  and  render  an  account,  on  oath,  of  the  property 
in  his  hands,  including  the  proceeds  of  all  real  estate  that  may  have 
been  sold  by  him,  and  of  the  management  and  disposition  of  such 
property,  within  one  year  after  his  appointment,  and  at  such  other 
times  as  the  court  shall  direct,  and,  at  the  expiration  of  his  trust,  settle 
his  accounts  with  the  court  or  with  the  ward  or  his  legal  representa- 
tives, and  pay  over  and  deliver  all  the  estate  and  effects  remaining 
in  his  hands  or  due  from  him  on  such  settlement  to  the  person  or 
persons  who  shall  be  lawfully  entitled  thereto,  then  this  obligation  to 
be  null  and  void;  otherwise  to  be  and  remain  in  full  force  and  effect. 

(Signed)  A.  B. 

C.  D. 

E.  F. 

I  hereby  approve  the  foregoing  bond,  both  as  to  form  and  sufficiency 
of  sureties. 

(Signed)     J.  K., 

County  Judge. 
Form  No. -229. 
OATH  OF  GUAKDIAN. 

I,  C.  D.,  do  solemnly  swear  that  I  will  well  and  faithfully  perform 
the  duties  required  of  me  as  guardian  of  the  estate  of  A.  B.,  a  minor, 
according  to  law  and  the  best  of  my  ability.  So  help  me  God. 

(Signed)     C.  D. 
Form  No.  230. 
LETTERS  OF  GUARDIANSHIP. 

State  of  Nebraska,  County. 

In  the  Matter  of  the  Guardianship  of  A.  B. 
To  C.  D.: 

Whereas,  application  in  due  form  has  been  made  to  me  for  your 
appointment  as  guardian  of  the  person  and  estate  of  A.  B.,  a  minor, 

and  an  orphan  of  the  age  of  years   [an  incompetent  person; 

or,  a  spendthrift],  residing  in  said  county,  and  relying  upon  your  care 
and  fidelity,  I  hereby  constitute  and  appoint  you  guardian  of  the  said 
minor  during  his  minority  [incompetent  person  during  the  continuance 
of  his  disability;  or,  spendthrift  until  discharged  by  the  court],  with 
full  power  to  receive,  demand,  and  collect,  by  process  of  law,  all 
the  real  estate  and  chattels,  rights,  credits,  and  effects  belonging  to 
said  A.  B.,  and  to  make  a  true  and  perfect  inventory  of  all  the  prop- 
erty of  the  said  A.  B.  within  this  state,  and  return  the  same  to  this 

(842) 


Chap.  36]  GUARDIANSHIP.  §  505 

court  on  or  before  the day  of ,  19 — .     You  will  also  care 

for  and  manage  the  property  of  the  said  A.  B.  according  to  law  and 
the  best  interests  of  the  said  A.  B.  "Within  one  year  from  this  date, 
and  yearly  thereafter,  and  at  any  time  that  may  be  required  by  this 
court,  you  will  render  a  true  account  of  all  the  money  and  property 
of  the  said  A.  B.  in  your  hands,  and  you  will  render  an  account  of  all 
the  money  and  property  received  by  you,  and  of  your  guardianship, 
whenever  you  are  required  so  to  do  by  any  court  having  jurisdiction 
in  the  premises. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  caused  the 

seal  of  the  court  to  be  affixed  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.  K, 

County  Judge. 

§  505.    Joint  guardians. 

Two  or  more  persons  may  be  appointed  joint  guard- 
ians of  the  same  ward,. either  by  a  last  will  or  the  order 
of  the  county  court.  The  trust  is  conferred  upon  them 
both  jointly  and  severally.  They  are  jointly  liable  for 
their  joint  acts,  and  severally  liable  for  their  separate 
acts.82  If  one  declines  to  act,  all  the  duties  of  the 
trust  devolve  upon  the  other;  and  the  same  is  true 
where  one  of  them  dies  after  the  issue  of  letters.83 
The  statute  contains  no  provisions  in  regard  to  their 
bond,  as  to  whether  it  should  be  a  joint  bond  with 
sureties  or  separate  bonds  with  sureties.  A  joint  bond 
is  usually  given.  Each  guardian  is  responsible  only 
for  that  portion  of  the  property  which  he  receives.84 
The  sureties  are  liable  for  the  joint  and  several  acts 
of  each,  and  the  discharge  of  one  will  not  release  them 
for  the  acts  of  the  other.85 

82  Blake  v.  Pegram,   101  Mass.  392. 

83  In  re  Reynolds,  11  Hun  (X.  Y.),  41. 

84  Jones'  Appeal,  2  Watts  &  S.   (Pa.)   143. 

85  Hocker  v.  Woods'  Exrs.,  33  Pa.  466;  Pirn  v.  Downing,  11  Serg. 
&  R.   (Pa.)   66. 

(843) 


§  506  PROBATE   AND  ADMINISTRATION.  [Cliap.  36 

§  506.    Guardian  of  nonresident. 

A  guardian  may  be  appointed  for  a  nonresident 
minor  or  other  person  liable  to  be  placed  under  guard- 
ianship, according  to  the  laws  of  this  state,  who  is 
seised  of  realty  in  this  state.86  The  procedure  is  the 
same  as  in  other  cases,  except  that  notice  is  required 
to  be  given  to  all  persons  interested  in  such  manner 
as  the  court  may  require.  There  is  no  provision  in 
the  statutes  for  the  appointment  of  a  guardian  of  a 
nonresident  who  has  no  property  in  this  state  except 
personalty. 

The  guardian  appointed  at  the  residence  of  the 
minor  is  a  proper  person  to  make  the  application,  and 
should  he  desire  it,  may  receive  the  appointment.87 
The  court  may,  however,  issue  letters  to  such  other 
person  as  may  be  deemed  suitable.88 

Guardianship  of  a  nonresident  first  lawfully  granted 
within  this  state  extends  to  all  the  estate  of  the  ward 
within  the  state,  and  excludes  the  jurisdiction  of  the 
county  court  of  every  other  county.89  The  guardian 
is  required  to  give  a  bond  with  the  same  provisions 
as  apply  to  other  guardians,  except  that  the  provisions 
relating  to  the  inventory  and  disposal  of  the  effects  is 
confined  to  such  property  as  may  come  into  his  hands 
in  this  state.90  His  powers  and  duties  are  limited  to 
this  state,  but  within  such  limit  are  the  same  as  though 
his  ward  lived  here,  and  should  his  ward  remove  to 
this  state,  he  is  entitled  to  his  custody  in  the  same 

8«  Rev.  Stats.,  c.  18,  §  122,  [1661];  L.  O.  L.,  §  1336. 

87  Hoyt  v.  Sprague,  103  U.  S.  613. 

88  Earl  v.  Dresser,  30  Ind.  11. 

89  Rev.  Stats.,  c.  18,  §  125,  [1664];  L.  O.  L.,  §  1339. 
»0  Rev.  Stats.,  c.  18,  §  124,  [1663] ;  L.  O.  L.,  §  1338. 

(844) 


Chap.  36]  GUARDIANSHIP.  §  507 

cases  as  guardians  of  residents.91  His  appointment 
is  principally  for  the  purpose  of  bringing  actions  in 
regard  to  real  estate  or  looking  after  the  same. 

§  507.    Removal  of  guardians. 

The  county  court  has  power  to  accept  the  resignation 
of  a  guardian  and  revoke  his  letters.92  Such  resigna- 
tion will  not  be  considered  as  a  judgment  that  a  full 
accounting  has  been  made  by  him.93 

A  guardian  may  be  removed  from  his  trust  if  the 
court  finds  that  he  is  insane,  incapable  of  discharging 
his  trust,  or  evidently  unsuitable  therefor.94  Incapa- 
bility which  is  a  ground  for  removal  may  be  defined 
as  a  gross  ignorance  of  duty,95  or  physical  or  mental 
incapacity  to  attend  to  the  business  of  the  estate.96 

The  term  "unsuitable"  covers  a  good  many  delin- 
quencies. It  includes  corrupt  morals,  such  as  are 
likely  to  have  an  injurious  influence  on  the  character 
of  the  ward,  especially  when  the  guardian  has  custody 
of  his  person;97  becoming  an  habitual  drunkard;98  re- 
fusing to  support  his  ward  when  the  ward  is  unable 
to  support  himself  and  he  has  ample  funds  for  that 
purpose;99  committing  waste100  knowingly  permitting 

91  R«v.  Stats.,  c.  18,  §123,  [1662];   L.  O.  L.,  §  1339. 

92  Rev.  Stats.,  c.  18.  §  116,  [1655] ;   L.  O.  L.,  §  1331. 

93  King  v.  Hughes,  52  Ga.  600. 

94  Rev.  Stats.,  c.  18,  §  116,  [1655] ;   L.   O.  L.,  §  1331. 

95  Wood  v.  Black,  84  Ind.  279;  Nicholson's  Appeal,  20  Pa.  50. 

96  Damarell  v.  Walker,  2  Redf.  Sur.  (N.  Y.)  198. 

97  Ruohs  v.  Backer's  Next  Friend,  6  Heisk.  (Tenn.)  395;  Badenhoof 
v.  Johnson,  11  Nev.  87. 

98  Kettletas  v.  Gardner,  1  Paige  Ch.  (N.  Y.)  488. 

99  In  re  Swift,  47  Cal.  629. 

100  Dickerson  v.  Dickerson,  31  N.  J.  Eq.  652. 

(845) 


§  507  PEOBATE  AND  ADMINISTRATION.  [Chap.  36 

unlawful  claims  against  the  estate  to  be  paid;101  using 
the  personal  property  for  his  own  benefit  and  collecting 
entirely  inadequate  rents  from  the  realty;102  criminal 
neglect  or  ill-treatment  of  his  ward;103  failure  to  give 
a  new  bond  when  ordered  by  the  court;104  and  becom- 
ing insolvent.105  It  is  not  necessary  to  show  that  he 
has  been  corrupt  or  guilty  of  malfeasance  in  office;  it 
is  sufficient  if  it  appears  that  he  has  neglected  to  prop- 
erly protect  his  ward's  interests.106 

A  minor  cannot,  on  arriving  at  the  age  of  fourteen 
years,  nominate  a  guardian  to  succeed  the  one  already 
serving,  unless  the  former  appointee  resigns  or  is  re- 
moved for  cause.107  A  failure  to  render  an  account,  if 
the  neglect  does  not  work  an  injury  to  the  estate,  is 
not  a  sufficient  ground  for  removal,108  the  rule  of  law 
being  that,  where  the  statute  enumerates  the  causes 
for  removal,  the  court  can  remove  the  guardian  for 
no  other  causes.109 

Form  No.  231. 
PETITION  FOE  EEMOVAL  OF  GUARDIAN. 

[Title  of  Cause  and  Court.] 
Your  petitioner,  E.  F.,  respectfully  represents  unto  the  court  that 

on   the  day   of  ,   19 — ,  letters   of   guardianship   on   the 

estate  of   A.  B.,  a  minor,  were  issued  out   of  and  under  the  seal  of 

101  Crocker  v.  Smith,  47  Neb.  102,  66  N.  W.  19;  Wood  v.  Black,  84 
Ind.  279. 

102  Robertson  v.  Epperson,  78  Neb.  279,  110  N.  W.  540. 

103  Rev.  Stats.,  c.  18,  §§  118,  120,  [1657],  [1659]. 

104  Rev.  Stats.,  c.  16,  §  82,  [1209]. 

105  Baldridge  v.  State,  69  Ind.  166. 

106  Crooker  v.  Smith,  47  Neb.  102,  66  N.  W.  19. 

107  Gray's  Appeal,  96  Pa.  243;  Dibble  v.  Dibble,  8  Ind.  307. 

108  Gott  v.  Culp,  45  Mich.  265,  7  N.  W.  767. 

109  Kahn  v.  Israelson,  62  Tex.  221. 

(846) 


Chap.  36]  GUARDIANSHIP.  §  508 

said  court  to  one  C.  D.,  and  that  said  C.  D.  is  now  the  guardian  of 
the  said  A.  B.;  that  said  C.  D.  has  become  and  now  is  unsuitable 
to  perform  the  duties  of  guardian  of  said  A.  B.,  for  that  said  C.  D. 

has  paid  from  the  estate  of  said  A.  B.  the  sum  of  dollars  in 

satisfaction  of  a  debt  for  which  said  A.  B.  and  his  said  estate  was 
not  liable;  that  said  C.  D.,  on  account  of  his  advanced  age  and  irascible 
temperament,  is  not  a  suitable  person  to  act  as  said  guardian  [set  out 
in  full  specific  charges  against  the  guardian]. 

Your  petitioner  prays  that  a  time  and  place  be  fixed  for  the  hear- 
ing on  said  petition,  that  notice  thereof  be  given  the  said  G.  H.,  and 
that,  upon  the  hearing  of  said  proceedings,  an  order  be  entered  re- 
moving said  C.  D.  from  his  trust,  and  for  the  appoinment  of  some 
suitable  and  competent  person  to  be  guardian  of  the  said  A.  B. 

Dated  this  day  of  ,  19 — . 

(Signed)     E.  F. 

[Add  verification,  Form  No.  5.] 

§  508.    Notice  to  guardian. 

Notice  of  the  hearing  on  the  petition  for  removal 
must  be  given  the  guardian  and  all  persons  inter- 
ested.110 The  county  court  cannot  hear,  try  and  de- 
termine the  alleged  insanity,  incapability  or  unsuit- 
ableness  of  the  guardian,  without  his  having  an 
opportunity  to  be  heard  in  his  defense.  A  failure 
to  serve  notice  upon  him  deprives  the  court  of  juris- 
diction, unless,  of  course,  he  enter  a  voluntary  appear- 
ance.111 The  court  has  no  authority  to  appoint  a  new 
guardian  until  the  authority  of  the  former  one  has 
been  terminated.112 

When  a  guardian  is  arrested  and  brought  to  trial  on 
the  charge  of  criminal  neglect  and  abuse  of  his  ward, 

HO  Rev.  Stats.,  c.  18,  §  116,  [1655]. 

in  Crooker  v.  Smith,  47  Neb.  102,  66  N.  W.  19;  Brodribb  v.  Tibbits, 
63  Cal.  80;  Copp  v.  Copp,  20  N.  H.  284;  McCloskey  v.  Plantz,  76 
Minn.  323,  79  N.  W.  176;  Lee  v.  Ice,  22  Ind.  384. 

112  Copp  v.  Copp,  20  N.  H.  284;  Robinson  T.  Zollinger,  9  Watts 
(Pa.),  169. 

.(847) 


§  508  PROBATE   AND  ADMINISTRATION.  [Chap.  36 

the  county  judge  before  whom  the  case  was  tried  may 
remove  him,  after  hearing  the  evidence  on  the  trial, 
without  further  notice.113  In  all  other  cases  notice 
must  be  served. 

Form  No.  232. 

NOTICE     OF    HEARING     ON     PETITION    FOR    REMOVAL     OF 

GUARDIAN. 

[Title  of  Cause  and  Court.] 

To  C.  D.,  Guardian  of  said  A.  B.,  and  All  Persons  Interested  in  the 
Estate  of  said  A.  B.: 

You  are  hereby  notified  that  E.  F.  has  filed  his  petition  in  said 
court  praying  for  your  removal  from  your  trust  as  guardian  of  said 
A.  B.,  a  minor,  for  the  reason  [state  causes  for  removal  as  alleged  in 
the  petition]. 

You   are   further   notified   that   a   hearing   on   said   petition   will   be 

had  at  the  county  court  room  in  said   county  on  the  day  of 

,  19 — ,  at  the  hour  of  9  o'clock  A.  M. 

Dated  this  day  of  ,  19—. 

(Seal)  (Signed)     J.  K., 

County  Judge. 

Form  No.  233. 

ORDER  REMOVING  GUARDIAN  FOR  CRIMINAL  NEGLECT  AND 
ABUSE  OF  WARD. 

[Title  of  Cause  and  Court.] 

It  appearing  to  this  court  that  on  the  day  of  ,  19 — , 

E.  F.,  filed  his  complaint  under  oath  against  C.  D.,  guardian  of  A.  B., 
an  incompetent  person,  for  neglecting  to  clothe  and  feed  said  A.  B., 
and  for  ill-treatment  of  said  A.  B.;  that  a  warrant  was  thereupon 
issued  for  the  arrest  of  said  C.  D.,  and  the  same  was  delivered  to 
J.  N.,  sheriff  of  said  county,  who  made  return  thereof  on  the  - 

day  of  ,   19 — ,  as  follows    [copy  return],  and  that  said   C.   D. 

entered  plea  of  not  guilty:  The  court  thereupon  proceeded  with 
the  trial  of  said  complaint.  E.  F.  and  G.  H.  were  sworn  and  testified 
as  witnesses  for  the  complainant,  and  C.  D.  in  his  own  behalf.  Upon 
consideration  of  the  evidence,  the  court  found  C.  D.  guilty  in  manner 
and  form  as  alleged  in  said  complaint. 

us  Rev.  Stats.,  c.  18,  §  133,  [1672]. 
(848) 


Chap.  36]  GUARDIANSHIP.  §  508 

Now,  therefore,  it  appearing  to  the  court  from  the  proceedings 
aforesaid  that  the  said  C.  D.  is  not  a  fit  and  suitable  person  to  have 
the  custody  of  said  minor,  and  the  condition  of  said  minor  will  be 
ameliorated  by  his  removal  from  said  trust,  it  is  therefore  ordered 
by  me  that  the  said  C.  D.  be  and  he  hereby  is  removed  from  his 
trust  as  guardian  of  said  A.  B.,  and  is  hereby  ordered  to  file  his 
account  as  such  guardian  within  ten  days  from  this  date. 

And  it  further  appearing  that  L.  M.  is  a  suitable  and  competent 
person  to  act  as  guardian  of  said  minor,  and  said  L.  M.  having  signi- 
fied his  willingness  to  accept  said  trust  should  it  be  granted  him,  it 
is  further  ordered  and  decreed  that  said  L.  M.  be  appointed  guardian 
of  the  said  A.  B.,  a  minor,  upon  his  filing  his  bond  as  required  by 
law  in  the  penal  sum  of  dollars. 

Dated  this  day  of ,  19 — . 

(Signed)     J.  K., 
County  Judge. 

Form  No.  234. 
ORDER  REMOVING  GUARDIAN. 

[Title  of  Cause  and  Court.] 

Now,   on  this  day  of  ,  19 — ,  this  cause   came  on  for 

hearing  on  the  petition  of  E.  F.,  praying  for  the  removal  of  C.  D. 
as  guardian  of  said  A.  B.,  a  minor,  for  [state  causes],  the  objections 
of  C.  D.,  and  the  evidence,  and  was  submitted  to  the  court;  and  it 
appearing  to  the  court  that  due  notice  has  been  given  said  C.  D., 
guardian,  of  the  pendency  of  said  petition,  as  appears  by  the  return 
of  J.  M.,  sheriff  of  said  county,  on  file  herein;  and  it  further  appear- 
ing to  said  court  that  the  said  C.  D.  is  [state  findings  which  are 
causes  for  removal] : 

It  is  therefore  ordered  and  decreed  that  the  said  C.  D.  be  and  he 
hereby  is  removed  from  his  trust  as  guardian.  It  is  further  ordered 
that  said  C.  D.,  within  ten  days  from  the  date  of  this  deem  file 
his  final  account  as  guardian.  And  it  appearing  to  the  court  that 
L.  M.  is  a  suitable  person  to  act  as  guardian  of  the  estate  of  said 
A.  B.,  and  the  said  L.  M.  having  signified  his  willingness  to  accept 
said  guardianship,  the  same  is  conferred  upon  him.  It  is  therefore 
ordered  that  letters  of  guardianship  on  the  person  and  estate  of  A.  B. 
issue  to  the  said  L.  M.  upon  the  filing  of  a  bond  in  this  court  in  the 

penal  sum  of  dollars. 

(Signed)     J.  K., 
County  Judge. 

54— Pro.  AJ.  (849) 


§§509,  509a    PROBATE  AND  ADMINISTRATION.     [Chap.  36 

§  509.    Appointment  of  successor. 

Whenever  any  guardian  shall  die,  be  removed  from 
his  trust,  or  the  court  accept  his  resignation,  pend- 
ing the  disability  of  his  ward,  a  successor  may  be  ap- 
pointed. The  new  guardian  is  given  authority  to  bring 
an  action  upon  the  bond  of  the  former  guardian  for 
any  damages  sustained  by  his  neglect  or  refusal,  or 
the  neglect  or  refusal  of  his  representatives,  to  turn 
ever  to  the  new  guardian,  according  to  the  order  or 
decree  of  the  county  court  or  according  to  law.114  He 
must  turn  over  money  or  good  securities,115  but  a 
receipt  of  the  same  does  not  release  him  from  liability 
for  mismanagement,116  and  a  collusive  or  fraudulent 
settlement  between  the  two  can  be  set  aside.117  He 
may  follow  the  assets  into  the  hands  of  third  parties, 
to  whom  they  were  unlawfully  transferred  by  his 
predecessor.118 

§  509a.    Transfer  of  guardianship. 

The  county  judge  has  power,  whenever  the  interest 
of  the  ward  and  convenience  of  the  ward  require,  to 
transfer  the  guardianship  to  any  other  county  in  the 
state.  A  petition  for  this  purpose  must  be  filed  setting 
forth  the  reasons  for  such  change  of  venue,  and  if 
satisfied  the  same  are  sufficient,  the  judge  shall  make 
the  order  of  removal  and  therein  shall  direct  that 
certified  copies  of  the  record  of  the  guardianship  and 
the  original  bond  filed  by  the  guardian  be  transmitted 
to  the  clerk  of  the  county  to  which  such  transfer  is 

114  Rev.  Stats.,  c.  18,  §  117,   [1656]. 

lie  Skidmore  v.  DavL,,,  10  Paige  (N.  Y.),  316. 

lie  Lamar  v.  Micou,  112  U.  S.  452. 

117  Ellis  v.  Scott,  75  N.  C.  108. 

118  Fox  v.  Kerper,  51  Ind.  148. 

(850) 


Chap.  36]  GUARDIANSHIP.  §  509a 

made,  there  to  be  filed.  The  filing  of  the  transcript 
and  bond  in  the  court  of  the  other  county  gives  the 
county  court  of  that  county  complete  jurisdiction  over 
the  matter,  and  all  further  proceedings  therein  must 
be  begun  in  that  county.119 

ll»  L.  O.  L.,  §§  1343-1345. 

(851) 


CHAPTER  XXXVII. 

POWERS  AND  DUTIES  OF  GUARDIANS. 

{  510.  Inventory  and  Appraisement. 

511.  Custody  of  Person  of  Ward. 

512.  Support  of  Minor  Ward. 

513.  Support  of  Incompetent  or  Spendthrift. 

514.  Labor  and  Services  of  Ward. 

515.  Collection  of  Assets. 

516.  Action  Against  Ward. 

517.  Contracts  of  Guardians. 

518.  Payments  of  Debts  of  Ward. 

519.  Powers  and  Duties  in  Eegard  to  Real  Estate. 

520.  Investment  and  Management  of  Personal  Estate. 

521.  Investment  and  Management  of  Personal  Estate — Concluded. 

522.  Liability  of  Guardian  for  Negligence. 

523.  Liability  for  Ill-treatment  of  Ward. 

524.  Rights  of  Foreign  Guardian  in  This  State. 

525.  Additional  or  Cumulative  Bond. 

§  510.    Inventory  and  appraisement. 

A  guardian,  like  an  executor  or  administrator,  is 
required,  within  three  months  after  his  receipt  of 
letters,  to  make  and  file  under  oath  a  true  and  perfect 
inventory  of  all  the  property  of  his  ward  in  this  state 
which  shall  have  come  into  his  possession  or  knowl- 
edge. It  must  be  appraised  in  the  same  way  as  that 
of  a  decedent.1 

As  in  the  case  of  a  decedent,  it  is  not  conclusive 
of  the  existence  of  assets  or  of  their  value,  and  either 
party  may  show  that  it  contains  errors  of  omission 
or  commission.2 

1  Eev.  Stats.,  c.  18,  §   114,   [1653];  L.  O.  L.,  §   1329.     See   §  172, 
supra. 

2  Green  v.  Johnson,  3  Gill  &  J.  (Md.)   389;  Martin  v.  Sheridan,  46 
Mich.  93,  8  N.  W.  722. 

(852) 


Chap.  37]     POWERS  AXD  DUTIES  OF  GUARDIANS.         §  511 

If  a  guardian  is  indebted  to  the  ward  when  he  as- 
sumes the  duties  of  his  trust,  such  indebtedness  be- 
comes assets  in  his  hands,  to  be  inventoried  and  ac- 
counted for  as  other  property.3 

§  511.    Custody  of  person  of  ward. 

The  guardian  of  an  insane  or  incompetent  person, 
or  of  a  spendthrift,4  or  of  a  minor  whose  parents  are 
both  dead,  always  has  the  custody  of  his  ward.5  The 
general  rule  is  that  if  one  or  both  of  the  parents  are 
living,  the  guardian  has  charge  of  the  property  of  the 
minor  and  is  not  entitled  to  his  custody.6  If  the  par- 
ent is  not  a  suitable  person  to  take  charge  of  his  child, 
the  right  exists,  both  at  common  law  and  under  the 
statutes,  to  place  his  control  in  the  hands  of  a  guard- 
ian or  of  some  other  suitable  person.7  A  minor  cannot 
be  removed  from  the  custody  of  a  parent  unless  it 
affirmatively  appears  that  the  habits,  character  or  oc- 
cupation of  the  parent  are  such  that  he  is  not  a  suitable 
person  to  look  after  his  offspring,  or  that  the  circum- 
stances, surroundings  and  conditions  under  which  he 

3  Xeill  v.  Neill,  31  Miss.  36;  Hoile  v.  Bailey,  58  Wis.  434,  17  N.  W. 
322;  Martin  v.  Davis,  80  Wis.  376,  50  N.  W.  172;  Winship  v.  Bass, 
12  Mass.  203.  For  forms  for  inventory  and  appraisement,  see  Nos. 
75,  79  and  80,  pages  265,  270. 

*  Bev.  Stats.,  c.  18,  §§  103,  109,  [1642],  [1648];  L.  O.  L.,  §§  1321, 
1326. 

5  Eev.  Stats.,  c.  18,  §  94,  [1633];  L.  O.  L.,  §  1314;  Jenkins  v.  Clark, 
71  Iowa,  522,  32  N.  W.  504;  Burges  v.  Frakes,  67  Iowa,  460,  25  N.  W. 
735. 

6  Ramsay  v.  Potter,  20  Wis.  507;  Lord  v.  Hough,  37  Cal.  657. 

"  Rev.  Stats.,  c.  18,  §  132,  [1671];  Badenhoof  v.  Johnson,  11  Nev. 
87;  Luphie  v.  Winans,  37  N.  J.  Eq.  345. 

(853) 


§  511  PROBATE  AND  ADMINISTRATION.  [Chap.  3? 

is  being  brought  up  cannot  but  exert  an  evil  influence 
upon  him.8 

Before  the  custody  of  a  child  can  be  permanently 
taken  from  its  parents,  they  have  a  right  to  be  heard. 
If  notice  of  the  application  is  given  them,  there  is  no 
reason  why  the  question  of  their  being  suitable  per- 
sons cannot  be  decided  on  such  hearing,  but  unless  it 
has  been  so  determined,  the  letters  do  not  give  the 
guardian  the  right  of  custody.9 

The  rule  which  should  govern  in  determining  the 
right  of  custody  is  the  same  as  in  habeas  corpus.  The 
welfare  and  best  interests  of  the  child  is  the  principal 
matter  to  be  considered,  but  the  court  will  not  remove 
the  child  from  the  control  of  the  parent  unless  such 
parent  is  an  unsuitable  person  to  bring  up  a  child  and 
the  future  welfare  of  the  child  require  him  to  be  placed 
in  different  surroundings.10 

A  guardian  who  also  has  the  custody  of  his  ward 
fixes  the  residence  of  his  ward.  He  may  remove  from 
the  county  in  which  he  was  appointed  to  another,11 
or  to  another  state,12 

8  Clarke  v.  Lyon,  82  Neb.  625,  118  N.  W.  472;  Terry  v.  Johnson, 
73  Neb.  653,  103  N.  W.  319;  Norval  v.  Zinsmaster,  57  Neb.  158,  77 
N.  W.  373. 

»  In  re  Thomsen,  1  Neb.  Unof.  751,  95  N.  W.  805;  Clarke  v.  Lyon, 
82  Neb.  625,  118  N.  W.  472. 

10  Schroeder  v.  State,  41  Neb.  745,  60  N.  W.  89;  Sturtevant  v.  State, 
15  Neb.  459,  19  N.  W.  617;  Norval  v.  Zinsmaster,  57  Neb.  157,  77  N.  W. 
373;  Terry  v.  Johnson,  73  Neb.  653,  103  N.  W.  319;  Clarke  v.  Lyon, 
82  Neb.  625,  118  N.  W.  472. 

11  Holyoke   v.   Haskins,   5   Pick.    (Mass.)    20;    Anderson    v.   Estate 
of  Anderson,  42  Vt.  350. 

12  Pedan   v.  Robb,  8  Ohio  St.  227;  Townsend  v.  Kendall,  4  Minn. 
412  (Gil.  315). 

(854) 


Chap.  37]     POWERS  AND  DUTIES  OF  GUARDIANS.         §  512 

§  512.     Support  of  minor  ward. 

The  guardian  of  a  minor  whose  father  is  living  is 
not  obliged  to  devote  the  funds  of  the  estate  to  the 
support  of  his  ward,  the  general  rule  being  that  it  is 
the  duty  of  a  parent  to  support  his  infant  children 
whether  they  have  estates  of  their  own  or  not.13  This 
rule  is  usually  relaxed  in  the  case  of  a  mother,  and  if 
the  child  has  property  of  his  own,  she  may  obtain 
leave  of  the  court  to  apply  such  part  of  his  estate  as 
is  desirable  for  that  purpose.14  Where  no  formal  ap- 
plication was  made,  but  the  amount  claimed  appears 
reasonable  and  the  circumstances  were  such  as  would 
justify  the  court  in  granting  it,  it  may  be  adjusted 
on  the  hearing  on  the  final  account.15 

Both  under  the  statute16  and  at  common  law,  if 
the  means  of  the  father  are  limited,  and  the  minor  is 
possessed  of  an  estate  the  income  from  which  will 
support  and  maintain  him  in  a  more  expensive  manner 
than  his  father  can  reasonably  afford,  regard  being 
had  to  the  situation  of  the  father's  family,  and  to  all 
the  circumstances  of  the  case,  either  the  whoLe  or  a 
part  of  the  expenses  of  the  education  and  maintenance 
of  such  minor  may  be  defrayed  from  his  separate  es- 
tate, as  may  be  directed  by  the  court,  and  the  charges 
may  be  allowed  accordingly  in  the  settlement  of  such 
guardian.17 

13  2  Kent,  Com.,  191;  In  re  Besondy,  32  Minn.  285,  20  N.  W.  366. 

14  Ellis  v.  Soper,  111  Iowa,  431,  82  N.  W.  1041;  In  re  Carter,  120 
Iowa,  215,  94  X.  W.  488. 

15  Welch  v.  Burris,  29  Iowa,  186;  Latham  v.  Meyers,  57  Iowa,  519, 
10  N.  W.  924. 

16  Rev.   Stats.,  c.   18,  §  97,   [1636]. 

17  Kinsey  v.  State,  71  Ind.  72;  Welch  v.  Burris,  29  Iowa,  186. 

(855) 


§  512  PEOBATE   AND  ADMINISTRATION.  [Chap.  37 

If  the  father  is  dead  or  wholly  unable  to  support 
the  minor  children^  it  is  the  duty  of  their  guardian 
to  see  that  they  are  suitably  supported,  maintained 
and  educated  at  the  expense  of  the  income  or  body 
of  the  estate,  as  their  circumstances  and  the  condition 
of  the  estate  will  warrant.18 

It  is  an  old  rule  that  a  minor  wholly  dependent  upon 
his  own  property  for  support  should  be  maintained, 
educated  and  supported  in  the  same  manner  as  those 
cf  his  social  standing,  considering  the  amount  and 
condition  of  his  estate.19 

Before  any  part  of  the  principal  of  a  ward's  estate 
is  expended  for  his  support  and  maintenance,  a  formal 
application  for  that  purpose  should  be  presented  to 
the  county  court  and  an  order  made  for  that  purpose.20 
Such  permission  is  not  absolutely  necessary.  If  the 
circumstances  warrant  it,  and  the  condition  of  the 
estate  permits,  payments  from  the  principal  will  be 
allowed,  and  held  a  proper  charge  in  the  settlement 
of  the  final  account,  though  no  leave  of  the  court  has 
been  had  and  obtained.21  All  payments  for  a  ward's 
maintenance  and  education  should  be  made  by  the 
guardian  himself,  or  by  and  under  his  express  direc- 
tion. It  is  not  a  power  he  can  delegate  to  anyone. 

18  State  v.  Roche,  94  Ind.  372;  Bond  v.  Lockwood,  33  111.  212;  In  re 
Mells,  64  Iowa,  391,  20  N.  W.  486;  Chubb  v.  Bradley,  58  Mich.  268, 
25  N.  W.  186. 

w  Wallis  v.  Neale,  43  W.  Va.  529,  27  S.  E.  227;  Jones  v.  Parker, 
67  Tex.  76,  3  S.  W.  222;  Stumph  v.  Goepper,  76  Ind.  323. 

20  Foteaux   v.   Le   Page,   6   Iowa,    123;    Prebble   v.   Longfellow,   48 
Me.  279;  Johnson  v.  Haynes,  68  N.  C.  514. 

21  Wilson's  Guardianship,  40  Or.  358,  68  Pac.  393,  69  Pac.  439;  In 
re  Besondy,  32  Minn.  385,  20  N.  W.  366;  Gott  v.  Gulp,  45  Mich.  265, 
7  N.  W.  767;  Karney  v.  Vale,  56  Ind.  542. 

(856) 


Chap.  37]     POWERS  AND  DUTIES  OF  GUARDIAXS.         §  513 

An  apparent  exception  exists  where  the  guardian,  hav- 
ing sufficient  assets  applicable  therefor,  fails  to  supply 
his  ward  with  necessaries.  In  this  case,  the  ward  him- 
self or  a  competent  third  party  may  purchase  suit- 
able necessaries,  and  the  guardian  will  be  held  liable 
therefor.22 

§  513.    Support  of  incompetent  or  spendthrift. 

An  incompetent  or  spendthrift  under  guardianship 
is  entitled  to  reimbursement  for  expenses  incurred  in 
resisting  the  application  for  his  guardian's  appoint- 
ment.23 He  is  also  entitled  to  such  support  from  his 
estate  as  its  condition  will  permit.  In  the  case  of  a 
person  confined  in  a  public  asylum  for  the  insane  in 
this  state,  all  costs  and  charges  are  defrayed  by  the 
county,24  Costs  of  clothing  should  be  paid  by  the 
guardian. 

In  the  case  of  an  insane  person  not  confined  in 
a  public  asylum,  or  one  otherwise  incompetent,  the 
guardians  may  make  a  contract  on  behalf  of  the  estate 
for  his  ward's  support.25 

He  should  obtain  an  order  of  the  court  for  that  pur- 
pose. In  fixing  the  amount  the  court  should  consider 
the  interests  of  the  unfortunate  rather  than  those  of 
his  presumptive  heirs,  and  award  such  a  sum  as  will, 
as  far  as  possible,  support  him  in  the  manner  he 
formerly  lived.26 

22  Gwalty  v.  Cannon,  31  Ind.  227;  Hastings  v.  Bachelor,  27  Tex.  259. 

23  Bev.  Stats.,  c.  18,  §  108,  [1647];  L.  O.  L.,  §  1325. 

24  Rev.  Stats.,  c.  74,  §  94,  [7271a]. 

^•">  Masters  v.  Jones,  158  Ind.  647,  64  N.  E.  213;  Creagh  v.  Tun- 
stall,  98  Ala.  249,  12  South.  713i 

-'<•>  Matter  of  Saulsbery,  2  Johns.  Ch.  (N.  Y.)  347;  Hambleton's 
Appeal,  102  Pa.  50. 

(857) 


§  514  PROBATE  AND  ADMINISTRATION.  [Chap.  37 

The  duties  of  the  guardian  of  a  spendthrift  in  look- 
ing after  the  support  of  his  ward  are  substantially 
like  those  of  the  guardian  of  an  incompetent.27 

§  514.    Labor  and  services  of  ward. 

It  is  not  the  policy  of  the  law  to  permit  a  minor  who 
has  no  parents  to  remain  idle  and  consume  the  princi- 
pal of  his  estate  for  his  support,  where  he  Has  suffi- 
cient age  and  ability  to  earn  money  for  himself.28  If 
he  lives  in  the  family  of  his  guardian  and  his  services 
exceed  the  value  of  his  board,  he  should  receive  the 
difference,29  or  if  less,  the  guardian's  claim  for  his 
board  should  be  reduced  by  their  value.30  If  he  works 
for  another  party,  the  guardian  may  permit  him  to 
use  the  money  for  his  own  purposes.31 

A  guardian  should  never  compel  his  ward  to  work 
at  the  expense  of  an  education  which  his  age,  ability 
and  natural  inclinations  demand  and  the  condition  of 
his  estate  permits.  He  stands  in  loco  parentis,  and 
the  duties  devolving  upon  him  should  receive  the  same 
diligent  attention  as  though  his  ward  were  his  own 
child. 

27  Rev.  Stats.,  c.  18,  §  109,  [1648];  Sturgis  v.  Sturgis,  51  Or.  19,  93 
Pac.  696.     Where  the  ward  is  possessed  of  a  large  estate,  the  court 
should  provide  liberally  for  his  welfare.     The  guardian  of  a  Michigan 
spendthrift  was  for  years  authorized  by  the  probate  court  to  pay  his 
ward's  board  at  a  fashionable  club,  clothing,  jewelry,  feed  and  care 
for  a  team  of  horses  and  a  carriage,  and  ten  dollars  per  month  spend- 
ing money,  in  all  not  exceeding  three  thousand  dollars  per  year. 

28  Brown  v.  Yaryan,  74  Ind.  305. 

29  Denison  v.  Cornwell,  17  Serg.  &  B.  (Pa.)  374. 

30  Boardman  v.  Ward,  40  Minn.  39?,  42  N.  W.  202. 

31  Shurtleff  v.  Rile,  140  Mass.  213,  4  N.  E.  407. 

(858) 


Chap.  37]     POWERS  AND  DUTIES  OF  GUARDIANS.         §  515 

§  515.     Collection  of  assets. 

The  right  to  the  possession  of  the  estate  of  a  ward 
passes  to  his  statutory  guardian  on  his  receipt  of 
letters.32  He  should  use  the  same  diligence  in  collect- 
ing them  that  the  ordinary  business  man  would  in  the 
management  of  his  own  affairs,  and  is  liable  for  neg- 
ligence in  failing  to  collect.33  He  should  commence 
and  prosecute  all  suits  which  may  be  necessary  for 
that  purpose,34  including  actions  for  property  fraudu- 
lently obtained  from  his  ward  before  the  issue  of 
letters.35  He  should  collect  and  reduce  to  possession 
property  coming  to  his  ward  by  descent  or  devise,36 
and  may  follow  assets  into  the  hands  of  third  parties 
with  notice.37  If  the  ward  is  entitled  to  a  pension  or 
has  a  claim  against  the  federal  government,  he  should 
prosecute  the  application.38 

The  code  permits  him  to  bring  an  action  without 
joining  with  him  the  person  for  whose  benefit  it  is 
prosecuted.39 

As  a  general  rule,  he  should  accept  nothing  but 
money  in  settlement  of  demands  of  the  estate,40  but  if 
he  has  acted  with  prudence  and  accepts  other  property, 

32  Rev.  Stats.,  c.  18,  §  111;  L.  O.  L.,  §  1314;  Cohoe  v.  State,  79  Neb. 
811,  114  N.  W.  286. 

33  In  re  Shandoney,  83  Cal.  387;  Covington  v.  Leak,  65  N.  C.  594. 

34  Shepherd  v.  Evans,  9  Ind.  260. 

35  Bennett  v.  Bennett,  65  Neb.  432,  91  N.  W.  489;  Somes  v.  Skinner, 
16  Mass.  348. 

36  Willis'   Appeal,   22   Pa.   325;   Covington   v.   Leak,   65   X.   C.   594; 
Walter  v.  Walla,  10  Neb.  123,  4  N.  W.  938. 

37  Fox  v.  Kerper,  51  Ind.  149. 

38  Boaz's  Admr.  v.  Milliken,  83  Ky.  634. 

39  Civ.  Code,  §  26. 

40  Brenham  v.  Davidson,  51  Cal.  352;  State  v.  Greensdale.  106  Ind. 
364,  6  N.  E.  926. 

(859) 


§  515  PROBATE  AND  ADMINISTRATION.  [Chap.  37 

and  such  settlement  appears  to  have  resulted  in  a 
benefit  to  the  estate,  it  should  be  approved.41 

At  common  law,  a  guardian  had  a  right  to  com- 
promise debts  due  his  ward  whenever  he  deemed  it 
for  the  best  interests  of  the  estate.42  Our  statutes  pro- 
vide that  he  may  compromise  claims  with  the  appro- 
bation of  the  county  court.43  It  is  not  clear  whether 
such  right  exists  independent  of  the  statute,  but  it 
would  seem  that  the  same  rule  ought  to  apply  as  in 
case  of  executors  and  administrators,  and  the  com- 
promise upheld  if  it  appears  to  have  been  in  the  in- 
terest of  the  estate.44 

He  has  the  same  right  as  an  executor  or  adminis- 
trator to  institute  special  proceedings  for  the  recovery 
of  any  money,  goods,  effects,  written  instruments  or 
ether  property  belonging  to  the  estate  of  the  ward 
alleged  to  have  been  concealed,  embezzled  or  conveyed 
away  by  any  party,  and  such  proceedings  may  also 
be  instituted  by  the  ward,  or  any  person  interested 
in  the  estate,  or  person  having  a  prospective  interest 
as  heir  or  otherwise,  or  by  a  creditor.45 

Property  of  a  ward  in  the  hands  of  his  guardian  is 
in  the  custody  of  the  law,  and  not  subject  to  attach- 
ment or  execution.  Deriving  his  powers  from  the 

41  Mason  v.  Buchanan,  62  Ala.  112. 

42  Schee  v.  McQuilliken,  59  Ind.  269;  Graham  v.  Hester,  15  La.  Ann. 
148. 

43  Eev.  Stats.,  c.  18,  §  111,  [1650];  L.  O.  L.,  §  1327.     For  forms  for 
petition  and  order,  see  Nos.  91,  92,  p.  306. 

44  Hagy  v.  Avery,  69  Iowa,  434,  29  N.  W.  409;   Torrey  v.  Black, 
58  N.  Y.  185. 

45  Rev.  Stats.,  c.  18,  §  121,   [1660].     For  forms  and  procedure,  see 
§  197,  page  291  et  seq. 

(860) 


Chap.  37]     POWERS  AXD  DUTIES  OF  GUARDIANS.         §  516 

court,  the  guardian  is  subject  to  the  control  of  the 
court  in  its  management.46 

§  516.    Actions  against  ward. 

It  is  the  duty  of  a  guardian  to  appear  and  represent 
his  ward  in  all  suits  and  proceedings  to  which  he  has 
been  made  a  party  defendant,  unless  another  person 
has  been  appointed  for  that  purpose  as  guardian  ad 
lit  em.*1 

The  personal  liability  of  the  ward,  as  in  an  action 
for  a  tort,  will  not  support  a  suit  against  the  guardian. 
The  w-ard  alone  is  liable.48  The  guardian  may  be 
joined  with  the  ward  in  an  action  brought  against  the 
ward  for  divorce.  The  court  has  no  power  to  make  an 
order  for  the  payment  of  alimony  or  suit  money  which 
will  bind  the  guardian.  The  enforcement  of  such 
decree  can  only  be  through  the  county  court.49 

The  defense  in  cases  against  minors  and  incompe- 
tents is  frequently  conducted  exclusively  by  a  guard- 
ian ad  litem,  whose  duties  are  confined  to  the  pro- 
tection of  the  interest  of  the  ward  in  the  particular 
matter,50  and  a  judgment  or  decree  rendered  against 
a  minor  not  represented  by  guardian  or  guardian  ad 
litem  is  voidable,  but  one  so  rendered  against  an  incom- 
petent ward  is  merely  erroneous.51  In  the  latter  case, 

46  Sections  520,  521,  post;  Sturgis  v.  Sturgis,  51  Or.  19,  93  Pac.  696. 

47  Laws  1913,  p.  595. 

48  Garrigus  v.  Ellis,  95  Ind.  598. 

49  Sturgis  v.  Sturgis,  51  Or.  20,  93  Pac.  696. 

50  In  re  Estate  of  Robertson,  86  Neb.  490,  125  N.  W.  1093. 

51  McCallister  v.  Lancaster  County  Bank,  15  Neb.  295,  18  N.  W.  57; 
McCormick  v.  Paddock,  20  Neb.  486,  30  N.  W.  602;  Parker  v.  Starr, 
21  Neb.  690,  33  N.  W.  424. 

(861) 


§  517  PROBATE  AND  ADMINISTRATION.  [Chap.  37 

where  there  was  nothing  to  show  that  the  defendant 
was  under  guardianship  and  that  there  was  a  good 
defense,  the  judgment  can  be  avoided  by  a  suit  in 
equity.52 

Persons  under  disability  who  are  represented  in  ac- 
tions against  them  by  guardians  are  bound  by  the 
same  rules  of  law  and  procedure  in  the  matter  in  which 
they  are  so  represented  as  are  other  persons.53 

§  517.    Contracts  of  guardians. 

Contracts  made  by  guardians  with  third  parties  in 
reference  to  the  property  of  their  wards  differ  from 
like  contracts  made  by  executors  or  administrators. 
A  guardian  has  power  to  bind  the  estate  of  his  ward 
by  contract  for  the  performance  of  any  services  neces- 
sary for  the  preservation  and  management  of  the 
estate,  provided  the  same  is  reasonable  in  its  terms. 
A  person  performing  services  pursuant  to  such  con- 
tract may  proceed  directly  against  the  estate.54 

Contracts  for  the  education  and  maintenance  of  the 
ward  or  for  necessaries  are  binding  on  the  guardian 
personally  and  not  on  the  estate.  He  is  entitled  to 
reimbursement  out  of  the  estate,  if  they  are  just  and 
proper,  for  payments  made  on  account  of  them.55 

In  Oregon  all  contracts  of  a  guardian  come  under 
the  latter  rule.56 

52  Spence  v.  Miner,  90  Neb.  108,  132  N.  W.  942. 

53  Allyn  v.  Cole,  3  Neb.  TInof.  235,  91  N.  W.  505* 

54  McCoy  v.  Lane,  66  Neb.  847,  92  N.  W.  1010;  Bailey  v.  Garrison, 
68  Neb.  679,  94  N.  W.  990. 

55  Reading  v.  Wilson,  38  N.  J.  Eq.  446;  Sperry  v.  Fanning,  90  111. 
1371;   Shephard  v.  Hanson,  9  N.  D.  249,  83  N.  W.  20;  McKinnon  v. 
McKinnon,  81  N.  C.  201. 

56  Sturgis  v.  Sturgis,  51  Or.  19,  93  Pac.  926. 

(862) 


Chap.  37]     POWERS  AXD  DUTIES  OF  GUARDIANS.         §  518 

§  518.    Payment  of  the  debts  of  the  ward. 

It  is  the  duty  of  the  guardian  to  pay  all  the  debts 
of  his  ward  existing  at  the  date  of  his  letters  from 
the  personal  estate  and  the  income  from  the  real  es- 
tate,57 but  if  such  assets  prove  insufficient,  he  may 
obtain  a  license  from  the  court  and  sell  real  estate  for 
that  purpose.58  There  are  no  statutory  proceedings 
for  the  allowance  and  adjustment  of  claims  against  a 
warjd.  It  is  the  duty  of  the  guardian  to  pay  such 
demands  as  he  believes  to  be  just  and  lawful.  He 
has  power,  with  the  consent  or  approval  of  the  court, 
to  enter  into  a  stipulation  compromising  a  claim 
against  his  ward,  whether  a  suit  be  pending  on  the 
same  or  not,  and  such  stipulation  will  be  as  binding 
on^  him  as  though  he  were  of  lawful  age.59 

An  action  may  be  brought  against  the  guardian  in 
his  official  capacity,  or  against  the  ward  himself,  if 
an  adult,  and  the  judgment  in  such  cases  is  enforceable 
c gainst  the  ward's  property  in  the  guardian's  posses- 
sion.60 

He  has  no  power  to  borrow  money  for  the  purpose 
of  paying  debts.61 

§  519.    Powers  and  duties  in  regard  to  real  estate. 

The  duties  of  a  guardian  require  him  to  take  charge 
of  all  the  real  estate  of  his  ward,  and  his  rights  over 

57  Bev.  Stats.,  c.  18,  §  110,  [1649] ;  L.  O.  L.,  §  1327. 

58  Chapter  XXXVIII. 

59  Savage  v.  McCorkle,  17  Or.  48,  21  Pac.  444. 

60  Bently  v.  Torbert,  68  Iowa,  122,  25  N.  W.  939;  Inhabitants  of 
Kaymond  v.  Sawyer,  37  Me.  406;  Brown  v.  Chase,  4  Mass.  436;  Morris 
v.  Garrisson,  27  Pa.  226. 

81  Trutch  v.  Bunnell,  11  Or.  58,  4  Pac.  588. 

(863) 


§  519  PROBATE  AND  ADMINISTRATION.  [Chap.  37 

the  same  are  much  more  extensive  than  those  of  an 
executor  or  administrator  over  the  estate  of  his  de- 
cedent. The  law  demands  that  his  management  be 
such  as  to  obtain  as  much  income  as  possible,62  and  at 
the  same  time  keep  the  buildings  and  improvements 
in  as  good  condition  as  the  character  and  amount  of 
the  estate  and  the  circumstances  of  the  ward  permit.63 
Ordinary  repairs,  such  as  merely  keeping  the  property 
in  tenantable  condition,  may  be  made  without  first 
obtaining  permission  from  the  court.  Improvements 
in  the  way  of  erecting  new  buildings  or  extensive  al- 
teration of  old  ones  can  only  be  made  after  first  obtain- 
ing an  order  of  the  court  therefor.64  If  he  neglects  to 
obtain  such  order,  the  estate  of  the  ward  cannot  be 
held  liable  therefor.65  The  costs  of  repairs  and  im- 
provements are  defrayed  from  the  income  of  the  real 
estate  or  from  the  personal  property,  though  the  pro- 
ceeds of  the  sale  of  other  real  estate  may,  under  order 
of  the  court,  be  used  for  the  erection  of  improvements. 
He  has  power  to  execute  a  lease  of  his  ward's  lands, 
which  in  all  cases  ends  with  the  termination  of  his 
trust.  In  case  of  his  death,  resignation,  or  removal 
during  the  existence  of  the  disability  of  the  ward,  it 
will  remain  valid  for  the  term  unless  his  successor 
expressly  disaffirms  it.66  Where  the  term  of  the  lease 
extends  beyond  the  date  of  the  removal  of  the  dis- 

62  Thackary's  Appeal,  75  Pa.  132. 

63  Smith  v.  Gummere,  39  N.  J.  Eq.  27;  Williams  v.  Fox,  25  Wis.  646. 

64  Kobinson  v.  Hersey,  80  Me.  225;  Murphy  v.  Walker,  131  Mass. 
341;  Frankenf eld's  Appeal,  102  Pa.  589. 

65  Gerber  v.  Bauerline,  17  Or.  115,  19  Pac.  849. 

66  in  re  Stafford,  3  Misc.  Rep.  (N.  Y.)  106. 

(864) 


Chap.  37]     POWERS  AND  DUTIES  OF  GUARDIANS.         §  520 

ability,  such  event,  per  se,  terminates  such  lease,67 
and  the  former  ward  may  at  once  avoid  the  unex- 
pired  term.68 

He  may  redeem  his  ward's  lands  from  mortgage 
liens,69  foreclose  mortgages  and  bid  in  the  property  for 
his  ward,70  sign  in  the  capacity  of  "owner"  a  petition 
for  paving  a  street,71  join  in  and  assent  to  partition  of 
the  real  estate  of  his  ward,  and  it  has  also  been  held 
that  he  may  bid  in  the  property  for  his  ward  at  parti- 
tion sale.72  It  is  a  general  rule,  however,  that  he  can- 
not invest  his  ward's  property  in  real  estate  without 
leave  of  the  court.73 

It  is  also  held  that  a  guardian  may  maintain  a  suit 
for  partition  in  behalf  of  his  ward.74 

§  520.    Investment  and  management  of  personal  es- 
tate. 

The  estate  of  any  person  under  guardianship  should 
always,  when  practicable,  be  so  invested  as  to  bring 
in  the  largest  possible  income  consistent  with  good 

6T  Field  v.  Schiefflin,  7  Johns.  Ch.  (X.  Y.)  150;  Alexander  v.  Buffing- 
ton,  66  Iowa,  360,  23  N.  W.  754;  Richardson  v.  Richardson,  49  Mo.  29; 
Watkins  v.  Peck,  13  N.  H.  360. 

68  Jackson  v.  O'Rorke,  71  Neb.  418,  98  N.  W.  1069. 

69  Wright  v.  Comly,  14  111.  App.  551;  Marvin  v.  Schilling,  12  Mich. 
356;   Witt  v.  Mewhirter,  57  Iowa,  545,  10  N.  W.  890. 

70  Walter  v.  Walla,  10  Neb.  123,  4  N.  W.  398. 

71  Chan  v.  City  of  South  Omaha,  85  Neb.  434,  123  X.  W.  464. 

72  Bowman's  Appeal,  3  Watts   (Pa.),  369. 

73  2  Kent,  Com.,  228,  230;  Woods  v.  Boots,  60  Mo.  546;  Holbrook 
v.  Brooks,  33  Conn.  347;  In  re  Petition  of  Dorr,  Walk.  Ch.   (Mich.) 
145;  Davis'  Appeal,  60  Pa.  118. 

74  Bowen  v.  Swander,  121  Ind.  164,  22  N.  E.  725;  Goudy  v.  Shank, 
8  Ohio  St.  415;  Tate  v.  Bush,  62  Miss.  145;  Thornton  v.  Thornton,  27 
Mo.  302. 

*5— Pro.  Ad.  (865) 


§  520  PKOBATE  AND  ADMINISTRATION.  [Chap.  37 

security.  A  guardian  should  always  keep  the  funds 
of  the  estate  separate  and  distinct  from  those  of  his 
own.  He  should  never  deposit  the  cash  of  the  estate 
in  a  bank  in  his  own  name,  but  in  his  official  capacity 
as  guardian.  All  sums  belonging  to  the  estate  should, 
as  soon  as  possible  after  their  receipt  by  him,  be  in- 
vested in  good  interest-bearing  securities,  he  only  re- 
taining in  his  possession  sufficient  to  pay  current 
expenses.75 

The  county  court,  on  application  of  the  guardian,  or 
of  any  person  interested  in  the  estate  of  any  ward, 
after  such  notice  to  all  persons  interested  therein  as  the 
court  shall  direct,  may  authorize  or  require  a  guard- 
ian to  sell  or  transfer  any  stock  in  public  funds,  or 
in  any  bank  or  corporation,  or  any  other  personal  es- 
tate or  effects  held  by  him  as  guardian,  and  to  invest 
the  proceeds  of  such  sale,  and  also  any  other  money 
in  his  hands,  in  real  estate,  or  in  any  other  manner  that 
shall  be  most  for  the  interest  of  all  concerned  therein, 
and  the  said  court  may  make  such  further  orders  and 
give  such  directions  as  the  case  may  require  for  manag- 
ing, investing  and  disposing  of  the  effects  of  the  estate 
in  the  hands  of  the  guardian.76  The  guardian  has  no 
authority  to  dispose  of  any  of  the  ward's  property 
without  first  submitting  the  matter  to  the  proper 
county  court,  and  obtaining  its  order  therefor.  No 
sale  or  transfer  of  the  property  of  the  ward  can  be 
had  without  the  authorization  of  the  court.77 

75  Knowlton  v.  Bradley,  17  N.  H.  458. 

76  Rev.  Stats.,  c.  18,  §  115,  [1654];  L.  O.  L.,  §  1330. 

77  Kendrix  v.  Richards,  57  Neb.  794,  78  N.  W.  378;  Slusher  v.  Ham- 
mond, 94  Iowa,  512,  63  N.  W.  185;  McDuffie  v.  Mclntyre,  11  S.  C.  551, 
32  Am.  Rep.  500;  Gentry  v.  Bearss,  82  Neb.  787,  118  N.  W.  1077. 

(866) 


Chap.  37]     POWERS  AXD  DUTIES  OF  GTJABDIANS.         §  520 

The  statute  above  cited  is  mandatory,  and  is  strictly 
construed.  In  order  to  relieve  himself  from  personal 
liability,  he  must  file  a  formal  petition  in  the  county 
court;  notice  must  be  given,  a  hearing  had  and  order 
made  and  entered.78 

The  method  of  service  rests  in  the  discretion  of  the 
court.  The  ward  may  appear  by  next  friend  or  guard- 
ian ad  litem.  Evidence  must  be  taken  showing  the 
desirability  of  making  loans  and  the  character  of  the 
security  offered.  The  court  should  see  that  no  doubt- 
ful notes,  bonds  or  mortgages  are  palmed  off  on  to 
the  estate,  safety  being  of  greater  importance  than  a 
high  rate  of  interest.79 

Where  investments  are  made  without  leave  of  the 
court,  he  will  be  held  liable  for  the  lawful  interest 
thereon,  irrespective  of  what  he  may  have  received  as 
profits  from  them.80 

It  is  not  the  intention  of  the  law  that  he  make  any 
profit  from  his  trust  except  the  compensation  which 
the  court  gives  him,  and  if  he  occupies  his  ward's  real 
estate,  he  should  be  charged  with  its  reasonable  rental 
value.81 

78  In  re  O'Brien's  Estate,  80  Neb.  125,  113  N.  W.  1001;  Gentry  v. 
Bearss,  82  Neb.  787,  118  N.  W.  1077. 

7»  In  re  O'Brien's  Estate,  80  Neb.  125,  113  N.  W.  1001;  In  re  Grand- 
strand,  49  Minn.  438,  52  N.  W.  41.  In  the  O'Brien  case  the  county 
judge  practically  acted  as  agent,  guardian  and  county  judge  without 
any  application  whatever  being  on  file.  Later,  in  his  judicial  capacity, 
he  formally  approved  his  acts.  The  court  held  such  formal  approval 
was  no  defense  to  an  action  against  the  guardian.  A  judge  guilty 
of  such  conduct  would  probably  be  impeached  were  charges  preferred 
against  him. 

80  Wilson  v.  Wilson,  90  Neb.  353,  133  N.  W.  447. 

81  Royston  v.  Royston,  29  Ga.  82;  Fox  v.  Willis,  25  Wis.  646;  Wilson 
V.  Wilson,  90  Neb.  353,  133  N.  W.  447. 

(867) 


§  521  PEOBATE  AND  ADMINISTRATION.  [Chap.  37 

Form  No.  235. 

APPLICATION   TO    SELL   PERSONALTY   AND   REINVEST   THE 

SAME. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on   the  day   of  ,   19 — ,   letters   of  guardianship   of   said 

estate  were  issued  to  him  by  said  court,  and  that  he  now  is  the  guard- 
ian of  said  estate.  [State  condition  of  personal  estate,  how  invested, 
income  now  derived  therefrom,  what  portion  it  is  desired  to  sell,  what 
portion  of  the  proceeds  needed  for  current  expenses  or  debts,  and  in 
what  manner  it  is  desired  to  invest  the  proceeds  of  the  sale.] 

Your  petitioner  therefore  prays  that  a  time  and  place  may  be 
fixed  for  the  hearing  of  this  application,  and  notice  thereof  given  to 
all  parties  interested  therein,  in  manner  to  be  determined  by  the  court, 
and  that  an  order  of  said  court  may  be  entered  giving  petitioner  such 
order  and  directions  in  regard  to  the  reinvestment  of  said  assets  as 
the  case  may  require. 

Dated  this  day  of  ,  19 — . 

(Signed)     C.  D., 

Guardian. 

§  521.    Investment  and  management  of  estates — Con- 
cluded. 

Where  investments  are  made  by  guardians  in  the 
manner  provided  by  law,  they  are  not  personally  liable 
if  a  loss  occurs,  unless  of  the  stock  or  securities  them- 
selves.82 

A  county  judge  has  power  to  instruct  a  guardian  to 
make  investments  according  to  his  discretion.  This 
is  not  the  best  practice  for  any  of  the  parties  inter- 
ested, for  if  a  loss  results,  the  guardian  may  become 
liable  therefor,  unless  it  appears  that  he  acted  with 

82  Hoyt  v.  Sprague,  103  U.  S.  613;  Guardianship  of  Cardwell,  55  Cal. 
137;  Carlysle  v.  Carlysle,  10  Md.  440. 

(868) 


Chap.  37]     POWERS  AND  DUTIES  OF  GUARDIANS.         §  521 

diligence  and  prudence  and  the  loss  resulted  from  the 
fraudulent  acts  of  another.83 

If  a  guardian  permits  the  funds  of  the  estate  to  lay 
idle  for  any  considerable  length  of  time  when  he  could 
have  invested  them,  or  employs  them  in  his  own  busi- 
ness, he  should  be  charged  with  interest,84  and  if  he 
uses  them  in  speculations  on  his  own  account,  the  in- 
terest may  be  compounded  annually.85 

What  constitutes  a  proper  investment  for  the  funds 
of  a  ward  is  a  matter  resting  in  the  sound  discretion  of 
the  court  and  guardian.  Our  statutes,  unlike  those  of 
some  states,  contain  no  provisions  for  such  investment. 
Real  estate  securities,  or  municipal  or  federal  bonds, 
though  the  income  therefrom  may  not  be  as  large  as 
from  other  securities,  are  usually  preferred.86  The 
safety  of  the  investment  should  be  considered,  rather 
than  the  amount  of  the  income.  Loans  upon  personal 
security  or  upon  indorsements  of  persons  or  corpora- 
tions of  doubtful  standing  should  not,  as  a  general 
thing,  be  made.87  He  should  never  take  any  chances 
by  loaning  his  ward's  money  at  usurious  rates,  but 
should  take  as  much  as  he  can  get  with  safety,  if  it  is 
a  legal  rate.88  If  he  makes  usurious  loans,  and  loses 
the  interest,  he  is  liable  to  his  ward  therefor.89  If  a 
guardian  uses  his  ward's  funds  in  speculation,  and 

83  Wyckoff  v.  Hulse,  32  N.  J.  Eq.  697;   Slaughter  v.  Favorite,  107 
Ind.  291,  4  N".  E.  880;  Jacobia  v.  Terry,  92  Mich.  275,  52  N.  W.  629. 

84  Swindall  v.  Swindall,  43  N.  C.  285. 

85  Farwell  v.  Steen,  46  Vt.  678;  Little  v.  Anderson,  71  N.  C.  190. 

86  Spear  v.  Spear,  9  Eich.  Eq.  (S.  C.)  184. 

87  Clark  v.   Garfield,   8   Allen    (Mass.),   427;    Gilbert  v.  Guptill,  34 
111.  112;  Smith  v.  Smith,  4  Johns.  Ch.  (N.  Y.)  281. 

88  Frost  v.  Winston,  32  Mo.  489. 

88  Draper  v.  Joiner,  9  Humph.  (Tenn.)  612. 

(869) 


§§  522,  523       PROBATE    AND   ADMINISTRATION.          [Chap.  37 

makes  large  profits,  he  is  not  allowed  to  pocket  the  pro- 
ceeds, but,  instead  of  paying  compound  interest,  he 
may  be  compelled  to  account  to  the  ward  for  the  prof- 
its of  the  investment.90 

§  522.    Liability  of  guardian  for  negligence. 

A  guardian  should  exercise  the  same  degree  of  care 
and  prudence  in  the  management  of  the  affairs  of  his 
ward  as  an  executor  in  administering  the  estate  of  his 
decedent.91  He  is  liable  for  losses  to  the  estate  caused 
by  his  negligence  and  lack  of  ordinary  care  and  atten- 
tion.92 Failure  to  collect  accounts  which  were  good, 
and  which  it  was  his  duty  to  collect,  permitting  prop- 
erty to  be  sold  for  much  less  than  its  reasonable  value, 
neglecting  to  pay  taxes  and  special  assessments  on  the 
ward's  property,  when  he  has  sufficient  funds  in  his 
possession  with  which  to  pay  them,93  have  been  held  to 
constitute  negligence  for  which  he  is  liable. 

§  523.    Liability  for  ill-treatment  of  ward. 

Any  guardian  to  whom  is  given  the  custody  of  an  in- 
fant, and  whose  duty  it  is  to  see  that  such  is  properly 
fed  and  clothed,  is  liable  in  an  action  brought  by  the 
infant  through  his  guardian  ad  litem  for  injuries  or 
damages  which  the  infant  has  sustained  on  account  of 

90  Bond  v.  Lockwood,  33  111.  312;  French  v.  Currier.  47  N.  H.  83; 
Seguin's  Appeal,  103  Pa.  139. 

»i  In  re  Roach's  Estate,  50  Or.  197,  92  Pac.  118. 

92  In  re  Roach's  Estate,  50  Or.  197,  92  Pac.  118. 

93  Leonard's  Appeal,  95  Pa.  196;  Leonard  v.  Barnum,  34  Wis.  105; 
McLean  v.  Hosea,  14  Ala.  194;  Shurtleff  v.  Rile,  140  Mass.  214,  4  N.  E. 
407;  Woodruff  v.  Snedecor,  68  Ala.  427. 

(870) 


Chap.  37]     POWEKS  AND  DUTIES  OF  GUAEDIANS.         §  523 

such  neglect  and  lack  of  suitable  care.94  He  is  also 
liable  in  a  criminal  action  to  a  fine  not  exceeding  one 
hundred  dollars,  or  imprisonment  in  the  county  jail  not 
exceeding  sixty  days,  if  he  neglect  to  feed  and  clothe 
his  ward,  or  maltreat  or  abuse  him  or  her  in  any  man- 
ner. The  complaint  may  be  made  and  filed  by  any- 
one having  such  minor  in  charge,  and,  if  the  county 
judge  shall  deem  the  same  sufficient,  he  shall  issue  a 
warrant  for  the  arrest  of  the  guardian.95 

Form  No.  236. 

INFORMATION  AGAINST  GUAEDIAN  FOR  NEGLECT  OR  ABUSE 

OF  WARD. 

State  of  Nebraska, 
County, — ss. 

The  complaint  of  E.  F.,  taken  under  oath  before  me,  J.  ~K.,  county 
judge  of  said  county,  who,  being  first  duly  sworn,  says  that  C.  D., 
guardian  of  A.  B.,  an  incompetent  person,  late  of  the  county  afore- 
said, at  and  within  the  county  aforesaid,  on,  to  wit,  the  day 

of ,  19 — ,  and  at  divers  and  sundry  other  times  previous  to  said 

date,  hag  neglected  to  well  feed  and  clothe  said  A.  B.,  incompetent 
person,  he,  the  said  E.  F.,  having  in  his  possession,  as  guardian  of  said 
A.  B.,  and  belonging  to  the  estate  of  said  A.  B.,  sufficient  funds  with 
which  to  provide  sufficient  food  and  clothing  for  said  A.  B.,  contrary 
to  the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  state  of  Nebraska. 

And  said  E.  F.  further  complaint  and  information  makes  that  said 
C.  D.,  guardian  as  aforesaid,  at  and  within  the  county  aforesaid,  on, 

to  wit,  the  day  of  ,  19 — ,  did  willfully  and  maliciously 

strike,  maltreat,  and  abuse  said  A.  B.,  contrary  to  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
state  of  Nebraska. 

(Signed)     E.  F. 

Subscribed  in  my  presence  and  sworn  to  before  me  this  day 

of ,  19—. 

(Seal)  (Signed)     J.  K., 

County  Judge. 

»4  Nelson  v.  Johansen,  18  Neb.  182,  24  N.  W.  730. 
»5  Rev.  Stats.,  c.  18,  §  130,  [1669]. 

(871) 


§§  524,  525       PROBATE    AND   ADMINISTRATION.          [Chap.  37 

§  524.    Rights  of  foreign  guardian  in  this  state. 

It  is  a  well-recognized  rule  that  a  guardian  ap- 
pointed in  one  state  has  only  statutory  authority  in 
another  jurisdiction.96  He  may  sell  real  estate  by 
complying  with  the  statute.97 

A  court  of  general  equity  jurisdiction  has  power, 
in  its  discretion,  to  order  personal  property,  his  share 
in  a  settled  estate,  or  his  share  in  real  estate  sold  on 
partition  sale,  turned  over  to  him.98  Their  right  to 
bring  actions  to  reduce  assets  of  the  estate  to  posses- 
sion the  same  as  a  local  guardian  is  not  clear,  though 
it  has  been  permitted  in  some  district  courts,  in  the 
language  of  one  of  the  older  judges  who  has  been 
dead  for  many  years,  "as  a  matter  of  broad  justice." 

A  guardian  who  collects  his  ward's  property  in 
another  state  is  responsible  for  it,  and  if  it  can  be 
traced  into  his  hands,  he  is  liable,  for  it  is  immaterial 
where  it  was  collected.99 

§  525.    Additional  or  cumulative  bond. 

Whenever  at  any  time  during  the  existence  of  the 
trust  it  shall  be  made  to  appear  to  the  court  that  the 
bond  of  a  guardian  has  become  impaired  on  account 
of  the  death  or  insolvency  of  a  surety  or  for  any  rea- 
son is  insufficient,  the  court  may  require  an  additional 

96  Leonard  v.  Putnam,  51  N.  H.  247;  In  re  Rice,  42  Mich.  528,  4 
N.  W.  284;  Morrell  v.  Dickey,  1  Johns.  Ch.  (N.  Y.)  153. 

97  Section  536,  post. 

98  Grimmett   r.   Ritherington,   16   Ark.  377;   Delafield   v.  White,   19 
Abb.   N.   C.    (N.   Y.)    104;    Ear?  v.   Dresser,   30   Ind.   11;    Cochran   v. 
Fillians,  30  S.  C.  237. 

»9  Estate  of  Secchi,  Minors,  Myr.  Prob.  (Cal.)  225. 

(872) 


Chap.  37]     POWEKS  AND  DUTIES  or  GUARDIANS.         §  525 

or  cumulative  bond,100  and  for  failure  to  give  such 
bond  when  ordered  by  the  court,  he  may  be  removed.101 
The  procedure  is  the  same  as  on  applications  for  ad- 
ditional bonds  of  executors  or  administrators.102 

The  new  bond  is,  under  our  statutes,  a  strictly  cumu- 
lative or  additional  obligation,103  relating  back  to  the 
date  of  the  letters  and  covering  all  liabilities  occurring 
during  the  entire  term  of  guardianship.104  If  the 
penalty  of  the  two  bonds  is  different,  the  liability  of 
the  sureties  is  in  proportion  to  and  to  the  extent  of  the 
penalties105 

Under  the  Oregon  practice,  the  county  court  may 
require  a  new  bond  to  be  given  by  any  guardian,  and 
may  discharge  the  existing  sureties  from  future  re- 
sponsibility in  regard  to  the  case  upon  like  terms  as 
are  prescribed  for  executors  and  administrators.106 

100  Eev.  Stats.,  c.  16,  §  81,  [1208]. 

101  Rev.  Stats.,  c.  16,  §  82,  [1209]. 

102  Section  164,  supra. 

103  Douglas  v.  Kessler,  57  Iowa,  63,  10  N.  W.  313. 

104  Clark    v.    Wilkinson,    59    Wis.   543,    18    N.    W.    481;    Stevens   v. 
Tucker,  87  Ind.  109;  Commonwealth  v.  Cox's  Admr.,  36  Pa.  442;  Lor- 
ing  v.  Bacon,  3  Cush.  (Mass.),  465. 

105  Bond  v.  Armstrong,  88  Ind.  65. 

106  L.  O.  L.,  §  1333. 

(873) 


CHAPTER  XXXVIII. 

GUARDIANS'  SALES  AND  MORTGAGES  OF  LANDS. 

i  526.  Power  of  Guardian  to  Sell  Real  Estate. 

527.  Procedure  for  Sale. 

528.  What  Interest  in  Lands  may  be  Sold. 

529.  Petition. 

530.  Order  to  Show  Cause — Service. 

531.  Hearing  on  the  Application. 

532.  License. 

533.  Bond  and  Oath. 

534.  The  Sale. 

535.  Confirmation  of  Guardian's  Sales. 

536.  Sales  by  Foreign  Guardians. 

537.  The  Rule  of  Caveat  Emptor. 

538.  Division  of  the  Proceeds. 

539.  Action  for  Recovery  of  Lands  Sold  by  Guardians. 

540.  Estoppel  of  Former  Ward. 

541.  Action  by  Party  Claiming  Adversely  to  Ward. 

542.  Collateral  Attack  on  the  License. 

543.  Collateral  Attack,  Bond  and  Oath. 

544.  Collateral  Attack — Notice  of  Sale  and  Sale. 

545.  Mortgage  on  Minor's  Lands — Application. 

546.  Proceedings  on  the  Application. 

547.  Sales  of  the  Interest  of  Insane  Spouse  in  Real  Estate. 

548.  Hearing  and  Bond. 

549.  Sale  and  Confirmation. 

§  526.    Power  of  guardian  to  sell  real  estate. 

A  guardian  is  without  authority  to  sell  real  estate 
or  execute  a  deed  of  conveyance  unless  he  has  procured 
a  license  for  that  purpose  from  the  district  court  or 
a  judge  thereof.  Any  guardian  may,  by  complying 
with  the  statute,  obtain  a  license  for  the  sale  of  real 
estate  of  his  ward  for  the  purpose  of  paying  debts, 
the  costs  and  expenses  of  managing  his  estate,  to  raise 
money  for  the  support,  education  and  maintenance  of 
(874), 


Chap.  38]  GUARDIANS'  SALES.  §  527 

the  ward  or  of  his  family,  or  both,  and  for  the  pur- 
pose of  making  an  investment  which  will  bring  in  a 
better  income.1 

In  Oregon  such  powers  are  vested  in  the  county 
judge.2 

The  guardian  of  an  insane  husband  or  wife  who  has 
been  for  three  years  incapable  of  executing  a  deed, 
relinquishment  or  conveyance  of  his  or  her  rights  in 
the  real  estate  of  the  other  may  also  obtain  leave  of 
the  court  to  sell  such  interest.3 

§  527.    Procedure  for  sale. 

Only  a  person  appointed  to  take  charge  of  the  prop- 
erty of  a  ward  by  a  duly  authorized  court,  and  who 
has  qualified  according  to  law,  can  make  application 
to  sell  real  estate.4  The  procedure  is  analogous  to 
that  in  executor's  and  administrator's  sales  for  pay- 
ment of  debts.  There  are,  however,  a  number  of  dif- 
ferences, owing  to  the  broader  power  given  a  guardian 
than  is  possessed  by  an  executor  or  administrator,  the 
changes  being  such  as  are  made  necessary  by  the  dif- 
ferent capacity  in  which  the  applicant  acts. 

Before  a  license  can  be  granted  for  the  sale  of  the 
real  estate  of  other  wards  than  minors,  the  guardian 
must  obtain  a  certificate  from  the  county  commis- 
sioners or  board  of  supervisors  of  the  county  of  which 
the  ward  is  an  inhabitant  of  their  approval  of  the 

1  Rev.  Stats.,  c.  18,  §§  136,  138,  139,  [1675],  [1677],    [1678]. 

2  L.  O.  L.,  §§  1346,  1347. 

3  Rev.  Stats.,  c.  18,  §  171,  [1710], 

4  Myers  v.  McGavock,  39  Neb.  670,  58  N.  W.  522;  Wells  v.  Steckle- 
berg,  50  Neb.  670,  70  N.  W.  242;  Shanks  v.  Seamcrad,  24  Iowa,  131. 

.(875) 


§  527  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

proposed  sale,  and  that  they  deem  it  necessary.5  The 
usual  practice  is  to  make  a  written  application  and 
attach  the  certificate  of  approval  to  the  petition. 

Under  the  Oregon  practice,  a  like  certificate  is  re- 
quired of  the  county  court.6  The  term  "county  court" 
as  used  in  the  above  section  is  clearly  the  court  which 
is  composed  of  a  judge  and  commissioners  in  charge 
of  governmental  or  administrative  duties  of  the  county. 
The  legislature  never  intended  that  the  approval  by 
a  court  of  a  proposed  order  should  be  a  preliminary 
step  to  an  application  to  the  same  court  for  such  order. 

Guardian's  sales  in  this  state  are  proceedings  in  rem, 
and  not  adversary  in  their  character.7 

Form  No.  237. 

PETITION  TO  COUNTY  COMMISSIONERS  FOR  APPROVAL  OF 
PROPOSED  SALE  OF  INCOMPETENT  PERSON'S  REAL 
ESTATE. 

To  the  County  Commissioners  of  County,  Nebraska: 

C.  D.,  guardian  of  A.  B.,  an  incompetent  person,  respectfully  repre- 
sents to  your  honorable  body  that  said  A.  B.  is  an  insane  person  over 

the  age  of  twenty-one  years,  to  wit,  of  the  age  of  years,  and 

is   now   confined   in   the   Nebraska   asylum    for    the   insane    at   ; 

that  said  A.  B.  is  possessed  of  no  personal  property  except  clothing, 
wearing  apparel,  and  household  furniture  of  the  value  of  -  -  dol- 
lars ($ ),  and  that  he  is  the  owner  of  the  following  described 

real  estate   [describe  real  estate],  and  that  said  real  estate  is  of  the 

value   of  dollars    ($ );    that   said   A.   B.   is   indebted   to 

various  persons  in  the  sum  of  dollars   ($ ),  and  there  is 

no  property  of  said  A.  B.  in  the  possession  of  your  petitioner  which 
can  be  applied  to  the  payment  of  said  debts,  and  your  petitioner  de- 
sires to  obtain  a  license  from  the  district  court  of  county  for 

the  sale  of  said  property  for  the  payment  of  said  debts. 

5  Rev.  Stats.,  c.  18,  §  137,  [1636]. 

6  L.  O.  L.,  §  1335. 

1  Hunter  v.  Buchanan,  87  Neb.  277,  127  N.  W.  166;  Huberman  v. 
Evans,  46  Neb.  784,  65  N.  W.  1045;  Myers  v.  McGavock,  39  Neb.  843, 
58  N.  W.  522. 

(876) 


Chap.  38]  GUARDIANS'  SALES.  §  528 

Your  petitioner  therefore  respectfully  requests  your  honorable  body 
to  certify  to  the  judge  of  the  district  court  of  said  county  jour 
approval  of  said  proposed  sale. 

Dated  this  —     -  day  of  ,  19 — . 

(Signed)     C.  D., 
Guardian  of  the  Estate  of  A.  B.,  an  Incompetent  Person. 

Form  No.  238. 

CERTIFICATE    OF    APPROVAL    BY    COMMISSIONERS    OP 
PROPOSED  SALE. 

Whereas,   C.  D.,  guardian   of  the  estate   of  A.  B.,   an  incompetent 

person,  has  made  application  to  the  commissioners  of  county 

for  their  approval  of  the  proposed  sale  of  the  real  estate  of  said  A.  B. 
for  the  purpose  of  paying  his  debts,  we  hereby  certify  that  we  have 
examined  into  the  necessity  of  said  proposed  sale,  and  find  it  necessary 
for  the  best  interests  of  said  incompetent  person,  and  we  fully  approve 
of  the  same. 

Dated  this  day  of  ,  19 — . 

(Signed)     G.  H., 

Chairman. 
Attest: 

(Seal)  (Signed)     E.  F., 

Clerk   of   Commissioners. 

§  528.    What  interest  in  lands  may  be  sold. 

Any  legal  or  equitable  interest  in  lands  may  be  sold 
under  license  of  the  court,  including  a  reversion,8  a 
remainder,9  an  undivided  share,10  a  contingent  re- 
mainder,11 or  other  equitable  interest.12  Under  this 
class  of  sales  there  appears  to  be  no  reason  why  the 
homestead  of  a  person  under  guardianship  may  not 
be  sold,13  and  there  is  authority  to  the  effect  that  prop- 

8  Foster  v.  Young,  .35  Iowa,  27. 

»  Wallace  v.  Jones,  93  Ga.  419,  21  S.  E.  89. 

10  Gilmore  v.  Rodgers,  41  Pa.  120. 

11  Dodge  v.  Stevens,  105  X.  Y.  985,  12  X.  E.  759. 

12  Anderson  v.  Mather,  44  X.  Y.  249. 

13  Merrill  v.  Harris,  65  Ark.  355,  46  S.  W.  398. 


§  529  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

erty  devised  to  a  minor  under  condition  that  it  shall 
not  be  sold  until  he  becomes  of  age  may  also  be  ordered 
sold.14 

A  guardian's  sale  conveys  only  the  interest  of  the 
ward  in  the  estate  sold,  and  does  not  affect  the  rights 
of  lienholders  or  those  holding  vested  or  contingent 
estates  therein.15 

§  529.    Petition. 

When  the  application  is  made  for  a  sale  solely  for 
the  payment  of  debts,  the  contents  of  the  petition  are 
practically  the  same  as  in  sales  by  executors  and  ad- 
ministrators. When  made  for  other  purposes,  it- 
should  also  contain  a  description  of  all  the  real  estate 
owned  by  the  ward,  give  the  condition  of  the  land 
sought  to  be  sold  with  encumbrances,  if  any,  and  the 
facts  and  circumstances  showing  that  the  best  inter- 
ests of  the  ward  will  be  subserved  by  such  sale.16  It 
should  set  out  facts  and  not  conclusions.  The  rule  is 
that  its  contents  must  be  sufficient  to  apprise  the  judge 
to  whom  the  application  for  an  order  to  show  cause 
is  made  of  the  desirability  of  the  sale.17 

It  may  allege  as  many  grounds  for  applying  for  such 
sale  as  the  statute  permits,  and  if  any  one  of  them  is 
sufficiently  alleged,  a  sale  made  under  a  proper  license 
will  be  good.18 

i*  Fitch  v.  Miller,  20  Cal.  352;  Southern  Marble  Co.  v.  Stegall,  90 
Ga.  236,  15  S.  E.  806. 

IB  Cool's  Heirs  v.  Higgins,  23  N.  J.  Eq.  308. 

16  Huberman  v.  Evans,  46  Neb.  784,  65  N.  W.  1045;  L.  O.  L.,   §  1351; 
Sprigg  v.  Stump,  8  Fed.  217. 

17  Womble  v.  Trice,  112  Ky.  533,  66  S.  W.  370,  67  S.  W.  9. 

18  Goldsmith  v.  Walker,  14  Or.  125,  12  Pac.  57. 

(878) 


Chap.  38]  GUARDIANS'  SALES.  §529 

It  must  be  signed  and  verified  by  the  guardian,  but 
where  verified  by  the  attorney,  it  has  been  held  good 
on  collateral  attack.19  There  is  no  such  thing  known 
to  the  law  as  an  oral  verified  petition.20  It  should 
be  filed  with  the  clerk  of  the  county  where  the  lands 
are  situated  or  a  judge  thereof  sitting  at  chambers 
anywhere  within  the  judicial  district.21 

Form  No.  239. 

PETITION  OF  GUARDIAN  FOR  LEAVE  TO  SELL  REAL  ESTATE 
OF  HIS  WARD  FOR  HIS  EDUCATION  AND  MAINTENANCE 
AND  FOR  REINVESTMENT. 

In  the  District  Court  of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Guardian  of  the  Estate  of 
A.  B.,  a  Minor,  for  Leave  to  Sell  Real  Estate. 

Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on  the  day  of ,  19 — ,  letters  of  guardianship  out  of  and 

under  the  seal  of  the  county  court  of  said  county  were  issued  to  him 
upon  the  estate  of  A.  B.,  a  minor;  that  said  A.  B.  is  of  the  age  of 

years,  and  now  resides  in  said  county;  that  said  minor  is  the 

owner  of  personal  property  consisting  of  clothing,  books,  and  house- 
hold furniture  of  the  value  of  dollars,  and  is  the  owner  of  no 

other  personal  property;  that  he  is  the  owner  of  the  following  de- 
scribed real  estate  [describe  real  estate,  and  give  condition  of  the 
property  and  income  therefrom] ;  that  said  A.  B.  is  now  a  student  in 
Dartmouth  College,  New  Hampshire,  and  the  cost  of  his  tuition,  board, 
traveling  and  other  expenses  is  about  the  sum  of  seven  hundred  dol- 
lars ($700)  per  year,  and  the  income  from  said  realty  is  insufficient 
to  pay  said  expenses;  that  your  petitioner  has  an  opportunity  to  invest 

the  sum  of dollars  of  the  proceeds  of  said  sale,  should  the  same 

be  made,  in  a  note  secured  by  first  mortgage  on  real  estate  bearing 
interest  at  the  rate  of  seven  per  cent  per  annum. 


i»  Hamiel  v.  Donnelley,  75  Iowa,  93,  39  N.  W.  210;  Ellsworth  v. 
Hall,  48  Mich.  407,  12  N.  W.  512;  Myers  v.  McGavock,  39  Neb.  843, 
58  N.  W.  522. 

20  State  v.  Dodge  County,  20  Neb.  595,  31  N.  W.  117. 

21  Stewart  v.  Daggy,  13  Neb.  290,  13  N.  W.  399;  Dietrichs  v.  Lin- 
coln &  N.  W.  E.  Co.,  14  Neb.  356,  15  N.  W.  728. 

(879) 


§  530  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

Wherefore,  your  petitioner  prays  that  a  license  may  be  granted  him 
to  sell  said  real  estate,  or  so  much  thereof  as  may  be  deemed  by  the 
court  advisable  and  for  the  benefit  of  the  ward,  and  for  such  other 
and  further  relief  as  may  be  just  and  equitable. 

(Signed)     C.   D., 
By  A.  B.  H.,  His  Attorney. 
[Add  verification.] 

§  530.    Order  to  show  cause — Service. 

If  it  shall  appear  from  the  petition  that  it  is  neces- 
sary or  would  be  beneficial  to  the  ward  that  a  sale  be 
made  of  any  part  of  his  real  estate,  an  order  is  made 
by  the  court  directing  the  next  of  kin  of  the  ward  and 
all  persons  interested  in  the  estate  to  appear  before 
the  court  at  a  time  and  place  therein  specified,  not 
less  than  four  nor  more  than  eight  weeks  from  the 
time  of  making  such  order,  to  show  cause  why  a 
license  should  not  be  granted  for  the  sale  of  such 
estate.22  The  order  should  contain  a  description  of 
the  land  sought  to  be  sold  and  the  purpose  of  the 
sale.23 

Personal  service  may  be  had  on  the  next  of  kin  and 
interested  parties  at  least  fourteen  days  before  the 
date  of  hearing,  or  by  publication  in  some  newspaper 
of  the  county  for  three  successive  weeks,  as  the  court 
may  direct;24  Oregon,  ten  days.25  Such  service  is  juris- 
dictional.26  Notice  to  the  ward  himself  is  not  neces- 
sary. As  far  as  he  is  concerned,  it  is  not  an  adversary 

22  Eev.  Stats.,  c.  18,  §  143,  [1282];  L.  O.  L.,  §  1352. 

23  Deford  v.  Mercer,  24  Iowa,  118. 

24  Kev.  Stats.,  c.  18,  §144,  [1683]. 

25  L.  O.  L.,  §  1353. 

26  Clark  v.  Nebraska  Sav.  Bank,  50  Neb.  669,  70  N.  W.  237;  Wells 
v.  Stecklenberg,  50  Neb.  670,  70  N.  W.  242. 

(880) 


Chap.  38]  GUARDIANS'  SALES.  §  530 

proceeding,  but  in  effect  his  application.27  Before  the 
sale  is  made,  a  copy  of  the  order,  if  issued  at  chambers, 
must  be  filed  with  the  clerk  of  the  district  court.28 

Form  No.  240. 

ORDER  TO  SHOW  CAUSE  WHY  LICENSE  SHOULD  NOT  ISSUE 
TO  GUARDIAN  FOR  SALE  OF  HIS  WARD'S  REAL  ESTATE 
TO  RAISE  FUNDS  FOR  HIS  MAINTENANCE. 

In  the  District  Court  of County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Guardian  of  the  Person  and 
Estate  of  A.  B.,  a  Minor,  for  Leave  to  Sell  Real  Estate. 

On  reading  and  filing  the  petition,  duly  verified,  of  C.  D.,  guardian 
of  the  person  and  estate  of  A.  B.,  a  minor,  for  license  to  sell  the  fol- 
lowing described  real  estate  [describe  real  estate  as  in  petition],  or 
a  part  thereof,  for  the  purpose  of  raising  funds  for  the  education  and 
maintenance  of  said  minor,  and  it  appearing  from  said  petition  that 
said  real  estate  consists  of  [unimproved  lots  in  the  city  of  Omaha, 
county,  Nebraska,  and  no  income  is  obtained  therefrom]  : 

It  is  therefore  ordered  that  the  next  of  kin  of  said  minor  and  all 
persons  interested  in  said  estate  appear  before  me  at  chambers  in  the 

courthouse   in   the   city   of  ,  county,   Nebraska,   on  the 

—  day  of  ,  19 — ,  at  9  o'clock  A.  M.,  to  show  cause,  if  any 

there  be,  why  license  should  not  be  granted  to  said  C.  D.,  'guardian, 
to  sell  said  real  estate  for  the  purposes  above  set  forth. 

And  it  is  further  ordered  that  a  copy  of  this  order  be  personally 
served  on  all  persons  interested  in  said  estate  at  least  fourteen  days 
before  the  date  set  for  the  hearing;  [published  once  each  week  for 
three  successive  weeks  in  the  ,  a  newspapr  printed  and  pub- 
lished in  said  county  of  ]. 

Dated  at  chambers  in  said county  this  day  of , 

19—. 

(Signed)      C.  H., 
Judge  of  the  District  Court,  County,  Nebraska. 

27  Hunter  v.  Buchanan,  87  Neb.  277,  127  N.  W.  166;  Myers  v.  Mc- 
Gavock,  39  Neb.  843,  58  N.  W.  522;  Scarf  v.  Aldrich,  97  Cal.  360,  32 
Pac.  324;  Mohr  v.  Porter,  51  Wis.  437,  8  N.  W.  364. 

28  Rev.  Stats.,  c.  18,  §  119,  [1688]. 

56— Pro.  Ad.  (881) 


§  531  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

§  531.    Hearing  on  application  for  sale. 

The  hearing  must  be  had  at  the  time  and  place 
designated  in  the  notice.29  The  next  of  kin  and  all 
other  persons  interested  in  the  estate  as  heirs  appar- 
ent or  presumptive  may  appear  before  the  court  and 
contest  the  application.  The  guardian  and  witnesses 
may  be  examined  under  oath  and  process  may  be  is- 
sued by  the  judge  as  in  other  cases.30 

It  is  the  duty  of  the  court  to  determine  on  the  ex- 
amination whether  it  is  for  the  benefit  of  the  ward 
that  his  real  estate  or  a  part  thereof  should  be  sold 
for  his  maintenance  or  education  or  for  investment.31 
If  he  finds  it  necessary  or  desirable  to  sell  a  part  of 
the  land  and  that  by  such  sale  the  whole  tract  would 
be  greatly  injured,  he  may  direct  a  sale  of  the  whole 
or  a  part,  or  such  part  as  he  may  deem  necessary.32 

"On  the  district  court  judges  the  law  has  conferred 
the  exclusive  power  to  say  whether  the  facts  exist 
which  justify  a  sale  of  a  ward 's  property  by  his  guard- 
ian; to  say  whether  the  sale  is  a  necessity  to  which 
the  ward  must  submit;  to  say  whether,  in  the  judg- 
ment of  the  court,  the  sale  asked  to  be  authorized  is 
for  the  best  interests  of  the  minor.  This  is  a  great 
discretion  and  a  sacred  trust  confined  to  the  district 
judges  by  the  law,  and  they  are  thus  made  the  guard- 
ians of  the  orphans  of  the  commonwealth.  Their  au- 
thority to  authorize  a  guardian  on  his  application  to 

2»  Rev.  Stats.,  c.  18,  §  146,  [1685];  Knickerbocker  v.  Knickerbocker, 
58  HI.  399. 

so  Rev.  Stats.,  c.  18,  §§  145-147,  [1684],  [1685],  [1686]. 

31  Rev.  Stats.,  c.  18,  §  148,  [1687]. 

32  Rev.  Stats.,  c.  18,  §  150,  [1689]. 

(882) 


Chap.  38]  GUABDIAXS'  SALES.  §  532 

sell  his  ward's  real  estate  was  not  meant  to  be  ex- 
ercised as  a  matter  of  course,  but  only  after  inquiry 
and  investigation  into  all  the  facts  and  circumstances; 
and  not  then  unless  the  mind  of  the  court  is  convinced 
that  such  sale  is  a  necessity  or  is  for  the  best  interests 
of  the  ward."33 

§  532.    License. 

The  license  should  describe  the  property  to  be  sold.84 
It  must  specify  whether  the  sale  is  to  be  made  for 
the  maintenance  of  the  ward  and  his  family,  or  for 
the  education  of  the  ward  and  his  children,  or  in  order 
that  the  proceeds  may  be  put  out  and  invested.  If 
the  property  appears  to  be  less  in  value  than  five  hun- 
dred dollars,  the  district  judge  may  direct  the  guard- 
ian to  sell  at  private  sale;  otherwise  it  must  be  at 
public  auction.35  The  statute  does  not  require  him 
to  fix  the  terms  of  the  sale,  and  that  matter  may  be 
left  to  the  discretion  of  the  guardian. 

In  Oregon  it  may  be  at  either  public  or  private  sale, 
as  the  judge  may  order.36 

Form  No.  241. 

LICENSE   TO   GUARDIAN  TO   SELL  REAL  ESTATE   OF  WARD. 
In  the  District  Court  of  County,  Nebraska. 

In   the  Matter   of  the  Application  of  C.  D.,  Guardian  of  the  Person 
and  Estate  of  A.  B.,  a  Minor,  for  Leave  to  Sell  Real  Estate. 

Now,  on  this  day  of  ,  19 — ,  at  the  hour  of  9  A.  M., 

this  cause  came  on  for  hearing  on  the  petition  of  C.  D.,  guardian  of 
the  person  and  estate  of  A.  B.,  a  minor,  for  leave  to  sell  the  follow- 

33  Myers  v.  McGavock,  39  Neb.  843,  58  N.  W.  522. 

34  Huberman  v.  Evans,  46  Neb.  744,  64  N.  W.  1045. 

35  Rev.  Stats.,  c.  18,  §  148,  [1687]. 

36  L.  O.  L.,  §  1357. 

(883) 


§  533  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

ing  described  real  estate  of  his  said  ward  [describe  real  estate  as  in 
petition],  and  the  evidence,  and  was  submitted  to  the  court;  and  it 
appearing  to  me  from  the  proof  on  file  that  proper  notice  of  the  time 
and  place  of  hearing  said  petition  has  been  given  the  next  of  kin  and 
all  persons  interested  in  said  estate  [that  said  proposed  sale  has  been 

duly   approved   by   the   county   commissioners   of  said  county, 

Nebraska,  of  which  county  said  A.  B.  is  a  resident,  and  a  certificate 
of  their  approval  filed  with  the  court] ;  and  it  further  appearing  to 
me,  after  a  full  hearing  on  the  petition  and  an  examination  of  the 
proofs  and  allegations  of  the  parties,  that  it  would  be  for  the  benefit 
of  said  ward  that  said  real  estate  be  sold  to  defray  the  necessary 
expenses  of  the  education  and  maintenance  of  the  ward,  and  for  the 
purpose  of  reinvesting  the  balance  of  the  proceeds  in  interest-bearing 
securities  or  some  productive  stock,  it  is  therefore  ordered  and  ad- 
judged by  me,  in  consideration  of  the  premises,  that  the  said  C.  D., 
guardian,  be  and  he  hereby  is  licensed  to  sell,  in  the  manner  pre- 
scribed by  law,  the  real  estate  above  described,  subject  to  all  the  liens 
and  encumbrances  existing  upon  said  premises.  That  prior  to  said 
sale  said  guardian  give  a  bond  as  required  by  law  in  the  penal  sum 

of dollars. 

Given  under  my  hand  at  chambers  in  judicial  district  this  

day  of ,  19—. 

(Signed)     W.  M., 
Judge  of  the  District  Court,  County. 

§  533.    Bond  and  oath. 

Every  guardian  licensed  to  sell  real  estate  is  re- 
quired to  give  a  bond,  with  sufficient  surety  or  sureties 
to  be  approved  by  the  judge,  conditioned  to  sell  the 
same  in  the  manner  prescribed  by  law  for  the  sales 
of  real  estate  by  executors  and  administrators,  and 
to  account  for  and  dispose  of  the  proceeds  of  the  sale 
in  the  manner  provided  by  law.37 

The  bond  is  jurisdictional.  The  district  judge  is 
vested  with  no  authority  in  the  matter,  and  must  take 

37  Rev.  Stats.,  c.  18,  §  151,  [1690];  L.  O.  L.,  §  1355. 
(884) 


Chap.  38]  GUARDIANS'  SALES.  §  533 

and  approve,  if  in  proper  form  and  sufficient  surety, 
a  bond  running  to  himself  as  obligee.  The  clerk  is 
without  authority  to  approve  it.38  It  is  not  necessary 
that  it  be  formally  approved  if  it  appears  to  have  been 
presented  to  the  judge  during  a  session  of  court  and 
directed  by  him  to  be  delivered  to  the  clerk.39  If  the 
land  is  sold  at  private  sale,  it  is  conditioned  to  dis- 
pose of  the  proceeds  of  the  sale  as  provided  by  law. 
He  is  also  required  to  take  an  oath  substantially  the 
same  as  that  of  an  executor  on  sale  of  real  estate.40 
This  is  also  jurisdictional,  and  unless  taken  within  the 
specified  time,  he  is  without  authority  to  sell.41 

Form  No.  242. 
GUAEDIAX'3   BOND   ON   SALE   OF   REAL   ESTATE. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal  and 

E.  F.  and  G.  H.,  as  sureties,  all  of county,  Nebraska,  are  held 

and  firmly  bound  onto  C.  H.,  judge  of  the  district  court  of  said  county, 

in  the  penal  sum  of  dollars  ($ ),  for  which  payment  well 

and  truly  to  be  made  we  do  hereby  jointly  and  severally  bind  our- 
selves, our  heirs,  executors,  administrators,  and  assigns,  by  these 
presents. 

Dated  this  day  of ,  19 — . 

Whereas,  on  the  day  of  ,  19 — ,  the  Honorable  C.  H., 

judge  of  the  district  court  of  said  county,  sitting  at  chambers,  issued 
his  license  to  C.  D.,  guardian  of  the  person  and  estate  of  A.  B.,  a 
minor,  for  the  sale  of  the  following  described  real  estate,  for  the  pur- 
pose of  [state  for  what  purpose  sale  is  to  be  made],  [describe  real 
estate  as  in  petition]. 

38  Bachelor  v.  Korb,  58  Neb.  122,  78  N.  W.  485. 

39  Hunter  v.  Buchanan,  87  Neb.  277,  127  N.  W.  166. 
*o  Eev.  Stats.,  c.   18,  §  152,   [1691];  L.  O.  L.,  §  1356. 

41  Bachelor  v.  Korb,  58  Neb.  122,  78  N.  W.  485;  Fuller  v.  Hager,  47 
Or.  242,  83  Pac.  782;  Blackman  v.  Bauman,  22  Wis.  611;  Campbell  v. 
Knights,  26  Me.  224. 

(885) 


§  534  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

Now,  therefore,  the  condition  of  this  obligation  is  such  that,  if  the 
said  C.  D.  shall  sell  said  real  estate  as  ordered  in  the  license  hereto- 
fore issued  by  said  C.  H.,  district  judge,  and  in  the  manner  prescribed 
by  law  for  the  sales  of  real  estate  by  executors  and  administrators, 
and  account  for  and  dispose  of  the  proceeds  of  said  sale  in  the  manner 
provided  by  law,  then  this  obligation  to  be  null  and  void;  otherwise 
to  be  and  remain  in  full  force  and  effect. 

(Signed)  C.  D. 
E.  F. 
G.  H. 

The  foregoing  bond  approved  by  me  this day  of ,  19 — . 

(Signed)      C.  H., 
Judge  of  the  District  Court, County,  Nebraska. 

§  534.    The  sale. 

Except  when  the  property  is  worth  less  than  five 
hundred  dollars,  notice  of  the  time  and  place  of  sale 
must  be  given  by  publication,  and  posting  notices  in  the 
same  manner  as  in  the  case  of  sales  for  the  payment  of 
debts,  and  evidence  of  such  notice  may  be  perpetuated 
in  the  same  way.42  Its  contents  should  be  the  same.  It 
should  contain  a  description  of  the  property  to  be  sold 
sufficiently  accurate  to  enable  it  to  be  identified.43 

Like  an  executor's  or  administrator's  sale,  it  need 
not  be  made  by  the  guardian  personally,  but  may  be 
conducted  by  his  attorney  or  auctioneer  under  his  per- 
sonal direction.44  Where  the  terms  have  been  fixed  by 
the  court,  he  can  make  no  contract  or  agreement  not 
in  accordance  therewith,  nor  confirm  or  ratify  any 

42  Eev.  Stats.,  c.  18,  §  153,  [1692];  L.  O.  L.,  §  1357. 

43  Kenniston  v.  Leighton,  43  N.  H.  309. 

44  Myers    v.    McGavock,    39    Neb.    843,    58    N.    W.    522;    Levara    v. 
McNeeny,  5  Neb.  Unof.  318,  98  N.  W.  179. 

(886), 


Chap.  38]  GUARDIANS'  SALES.  §  534 

deed  or  agreement  made  by  Ms  ward.  Such  act  of 
the  ward  is  void.45  The  sale  must  be  made  to  the 
highest  bidder,  without  regard  to  any  prearranged 
contract  or  agreement  with  the  purchaser,  or  any 
subsequently  made  which  are  not  within  the  terms  of 
the  license.48 

A  guardian  may  lawfully  make  an  agreement  with 
an  intending  purchaser  by  which  the  latter  is  to  bid 
a  certain  price  at  the  sale.  If  no  one  bids  more  and 
the  price  is  adequate,  the  sale  is  valid,  and  the  pur- 
chaser cannot  set  up  the  defense  that  the  agreement 
was  contrary  to  public  policy  and  that  he  is  conse- 
quently released  from  liability.47 

The  guardian  cannot  be  a  purchaser,  and  where 
there  is  evidence  of  collusion  between  him  and  a  pur- 
chaser from  whom  he  subsequently  acquired  the  land, 
it  has  been  held  that  no  title  passed,  and  that  the  in- 
terests of  the  ward  were  not  divested.48  The  license 
continues  in  force  for  one  year,  and  the  sale  may  be 
made  at  any  date  within  that  time  after  proper  notice.49 

45  Gaylord  v.  Stebbins,  4  Kan.  42;  Worth  v.  Curtis,  15  Me.  228. 

46  Doty  v.  Hubbard,  55  Vt.  278. 

47  Hyatt  v.  Anderson,  69  Xeb.  702,  96  N.  W.  620. 

48  McKay  v.  Williams,  67  Mich.  547,  35  N.  W.  159;  Winter  v.  Truax, 
87  Mich.  324,  49  N.  W.  604;  Carpenter  v.  McBride,  3  Fla.  292. 

49  Eev.  Stats.,  c.  18,  §  153,  [1692]. 

(887) 


§  534  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

Form  No.  243. 

EETUEN  OF  GUAEDIAN  ON  SALE  OF  HIS  WAED'S  EEAL 

ESTATE. 

In  the  District  Court  of  • County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D., 
Guardian  of  the  Person  and  Estate 
of  A.  B.,  an  Incompetent  Person,  for 
Leave  to  Sell  Eeal  Estate. 

To  the  Judge  of  the  District  Court  of County,  Nebraska: 

I,  C.  D.,  guardian  of  the  person  and  estate  of  A.  B.,  an  incompe- 
tent person,  herewith  make  return  of  my  proceedings  on  the  sale  of 
the  following  described  real  estate  [describe  property  the  same  as  in 
the  petition  and  license],  pursuant  to  license  granted  to  me  on  the 
day  of ,  19—. 


That,  in  pursuance  of  said  license,  I,  on  the  day  of 


19 — ,  took  and  subscribed  the  oath  required  by  law  before  C.  F.  D., 
a  notary  public  of  said  county,  and  filed  the  same  in  this  court;  on 
the  same  day  I  filed  a  bond  as  required  by  said  license,  which  was 
on  said  day  duly  approved  by  the  Honorable  C.  H.,  judge  of  said 
court;  that  I  obtained  a  "certificate  of  approval  of  said  proposed  sale 
from  the  board  of  supervisors  of  said  county,  and  the  same  is  on  file 
herein,  and  thereupon  I  gave  public  notice  of  the  time  and  place  of 

said    sale   by    publication   of   the   same   in   the  ,   a  newspaper 

printed  and  published  in  said  county,  for  three  successive  weeks,  as 
required  by  said  license  [that  attached  hereto,  marked  "Ex.  A,"  and 
made  a  part  hereof,  is  the  affidavit  of  E.  F.,  foreman  of  the  said 

,  of  the  publication  of  this  notice],  and  by  posting  said  notice 

in  three  of  the  most  public  places  in  said  county  of [that  at- 
tached hereto,  marked  "Ex.  B,"  and  made  a  part  of  this  return,  is  the 
affidavit  of  G.  H.  of  the  posting  of  said  notices] ;  that  in  pursuance 
of  the  terms  of  said  notice,  and  at  the  time  and  place  mentioned 
therein  [if  an  adjournment  was  had,  state  to  what  time  and  place, 
and  how  notice  thereof  was  given],  I  offered  said  real  estate  for  sale 
at  public  auction  to  the  highest  bidder  for  cash,  and  kept  said  sale 
open  for  one  hour,  and  sold  said  real  estate  to  L.  M.  for  the  sum  of 

dollars   ($ ),  he  being  the  highest  bidder  therefor,  and 

said  being  the  highest  sum  bid;  that  said  sale  was  in  all  respects 
fairly  conducted,  and  I  exerted  my  best  endeavors  to  sell  said  real 
estate  in  such  a  manner  as  would  be  for  the  advantage  of  all  persons 

(888) 


Chap.  38]  GUARDIANS'  SALES.  §  535 

interested  in  said  estate,  and   of  said  ward;   and,  in  my  opinion,  no 
greater  sum  than  the  amount  specified  can  be  obtained  for  the  same. 

I.  further  report  that,   of  the  amount  so   received  by  me,  the  sum 

of  dollars    ($ )    will   be   necessary   for   the   support   and 

maintenance  of  said  ward  and  his  family,  and  for  the  payment  of  the 

costs  of  this  proceeding,  and  that  the  balance  of  about  dollars 

will  remain  in  my  hands  for  investment,  pursuant  to  the  order  of  the 
court. 

Dated  this  day  of  ,  19—. 

(Signed)     C.   D., 
Guardian  of  the  Person  and  Estate  of  A.  B.,  an  Incompetent  Person. 

§  535.    Confirmation  of  guardian's  sales. 

There  is  no  statute  providing  for  the  confirmation 
of  guardian's  sales  except  the  general  one  that  they 
shall  be  conducted  in  the  same  manner  as  those  by 
executors  and  administrators  for  the  purpose  of  pay- 
ing debts  of  their  decedents.  Confirmation  of  such 
sales  has  always  been  the  practice  in  this  state,  and 
such  is  the  clear  intent  of  the  law.. 

In  the  leading  case  on  guardian's  sales,50  the  court 
practically  held  it  necessary  by  its  decision  that  cer- 
tain findings  of  the  district  judge  on  strictly  jurisdic- 
tional  matters  were  presumed  to  be  based  on  sufficient 
evidence  and  not  subject  to  collateral  attack. 

The  petition,  order  to  show  cause  and  proof  of  ser- 
vice of  same,  when  granted  at  chambers,  should  be 
filed  in  the  office  of  the  clerk  of  the  district  court.  The 
procedure  for  confirmation  should  be  the  same  as  in 
executor's  and  administrator's  sales,  except  that  when 
sales  are  for  the  purpose  of  reinvestment  or  a  surplus 
remains  in  the  hands  of  the  administrator  not  needed 
for  present  necessities,  the  court  may  specifically 

60  Myers  v.  McGavock,  39  Neb.  843,  58  N.  W.  522. 

(889) 


§  535  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

direct  how  it  be  invested,  or  instruct  the  guardian  to 
invest  according  to  his  best  judgment.51  The  residue 
of  the  proceeds  remaining  in  the  hands  of  a  guardian 
upon  the  final  settlement  of  his  accounts  is  considered 
and  disposed  of  as  real  estate.52 

Confirmation  cures  the  same  irregularities  as  in 
executor's  and  administrator's  sales,  and,  as  in  them, 
never  renders  a  sale  valid  where  some  act  is  omitted 
which  the  statute  requires  in  order  to  convey  a  good 
title.53 

Form  No.  244. 

CONFIRMATION  OF  GUARDIAN'S  SALE. 
In  the  District  Court  of County,  Nebraska. 

In   fhe   Matter   of   the   Application   of   C.  D.,   Guardian   of   A.  B.,  an 
Incompetent   Person,   for  License   to  Sell   Real   Estate. 

An  order  to  show  cause  why  the  sale  of  the  following  described 

real  estate,  ,  should  not  be  confirmed  having  been  made  on  the 

day  of ,  19—,  and  given  to  all  persons  interested  therein, 

and  it  appearing  to  me  that  notice  was  given  of  the  time  and  place 
of  said  sale  according  to  law,  that  the  sale  of  said  real  estate  was 
had  according  to  notice,  was  legally  made  and  fairly  conducted,  and 
that  the  sum  bid  is  not  disproportionate  to  the  value  of  the  property 
sold,  it  is  therefore  ordered  and  adjudged  by  me  that  the  said  sale 
be  and  hereby  is  confirmed,  and  that  said  C.  D.,  guardian  of  A.  B., 
an  incompetent  person,  is  hereby  directed  as  such  guardian  to  execute 
a  deed  of  conveyance  to  E.  F.,  the  purchaser  of  said  premises. 

And  it  further  appearing  that  said  C.  D.,  guardian  as  aforesaid, 

has  in  his  possession  of  the  proceeds  of  said  sale  the  sum  of  

dollars,  and  that  the  sum  of  dollars  thereof  is  not  needed  for 

the  immediate  necessities  of  said  ward  or  his  family,  it  is  further 
ordered  that  said  guardian  invest  said  sum  of dollars  in  a  note 

51  Rev.  Stats.,  c.  18,  §  140,  [1679]. 
62  Rev.  Stats.,  c.  18,  §  141,  [1680]. 
53  Blackman  v.  Bauman,  22  Wis.  611. 

(890) 


Chap.  38]  GUARDIANS'  SALES.  §  536 

or  notes  secured  by  mortgage  on  real  estate  of  at  least  double  the 
value  of  the  loan. 

Dated  this  day  of  ,  19 — . 

(Signed)     W.  M., 
Judge  of  District  Court. 

A  guardian's  deed  is  substantially  the  same  as  that 
of  an  executor  or  administrator.54 

§  536.    Sales  by  foreign  gnardians. 

When  any  minor,  insane  person  or  spendthrift  resid- 
ing out  of  this  state  shall  be  put  under  guardianship 
in  the  state  or  country  in  which  he  resides  and  shall 
have  no  guardian  appointed  in  this  state,  the  foreign 
guardian  may  file  an  authenticated  copy  of  his  ap- 
pointment in  the  district  court  of  any  county  in  which 
his  ward  may  own  real  estate,  and  obtain  a  license  for 
the  purpose  of  paying  debts  and  the  expenses  and 
charges  of  managing  the  estate.55  The  certified  copy 
should  be  proved  by  the  authentication  of  the  clerk, 
under  the  seal  of  the  court,  together  with  a  certificate 
of  the  judge,  or  a  presiding  magistrate,  that  the 
attestation  is  in  due  form  of  law.56  If  the  attestation 
is  irregular  on  its  face  but  it  appears  that  the  court 
found  that  the  party  making  the  application  was  the 
duly  qualified  guardian,  the  finding  will  not  be  dis- 
turbed on  collateral  attack.57 

The  petition,  notice  or  order  to  show  cause,  and 
service  of  same,  hearing,  license,  notice  of  sale,  oath 
and  sale  are  the  same  as  in  sales  by  a  domestic  guard- 

54  See  §  337,  Form  No.  157. 

55  Rev.  Stats.,  c.  18.  §§  155,  156,  [1694],  [1695];  L.  O.  L.,  1359. 
5«  Civ.  Code.  §  422. 

6T  Myers  v.  McGavock,  39  Neb.  843,  58  N.  W.  522. 

(891) 


§  536  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

ian.  If  he  is  licensed  to  sell  more  than  enough  to  pay 
the  debts  and  expenses  of  managing  the  estate,  he  is 
required,  before  making  the  sale,  to  give  a  bond  to  the 
district  judge  with  sufficient  sureties  to  account  for 
all  the  proceeds  of  such  sale  that  shall  remain  after 
the  payment  of  said  debts  and  charges  and  to  dispose 
of  the  same  according  to  law.58  If  it  shall  appear  that 
he  is  bound  by  sufficient  sureties  in  the  state  or  coun- 
try where  he  was  appointed  to  account  for  the  pro- 
ceeds of  such  sale,  and  an  authenticated  copy  of  such 
bond  is  filed  in  the  district  court,  no  further  bond  shall 
be  required.59 

The  proceeds  of  such  sale  are  considered  real  estate 
the  same  as  in  case  of  sales  by  domestic  guardians.60 

Under  the  Oregon  statutes,  the  proceedings  for  a 
sale  by  a  foreign  guardian  are  the  same  as  those  of  a 
home  representative,61  and  if  objections  are  filed,  costs 
may  be  awarded  by  the  court,  in  its  discretion,  to  the 
prevailing  party.62 

Form  No.  245. 

BOND  OF  FOEEIGN  GUARDIAN  ON   SALE   OF  REAL  ESTATE 
FOR  PAYMENT  OF  DEBTS. 

Know  all  men  by  these  presents,  that  C.  D.,  of  the  county  of  Cook 

and  state   of  Illinois,  as  principal,  and  E.  F.  and  G.  H.,  of  

county,  Nebraska,  as  sureties,  are  held  and  firmly  bound  unto  the 
Honorable  W.  M.,  judge  of  the  district  court  of  county,  Ne- 
braska, in  the  penal  sum  of  dollars  ($ ),  for  which  pay- 
ment well  and  truly  to  be  made  we  do  hereby  bind  ourselves,  our  heirs, 
executors,  administrators,  and  assigns,  jointly  and  severally,  firmly  by 
these  presents. 

Dated    at   ,   county,   Nebraska,    this   day    of 

,  19-. 

58  Rev.  Stats.,  c.  18,  §§  157,  158,  [1696],  [1697];  L.  O.  L.,  §  1362. 

59  Rev.  Stats.,  c.  18,  §  159,  [1698]. 

60  Rev.  Stats,  c.  18,  §  160,  [1699]. 

61  L.  O.  L.,  §  1360. 

62  L.  O.  L.,  §  1363. 

(892) 


Chap.  38]  GUABDIANS'  SALES.  §§537,538 

Whereas,  C.  D.  has  filed  an  authenticated  copy  of  the  letters  of 
guardianship  upon  the  estate  of  A.  B.,  a  minor,  issued  to  him  out  of 
and  under  the  seal  of  the  probate  court  of  Cook  county,  Illinois,  has 
made  application  for  license  to  sell  the  real  estate  of  his  said  ward 
situated  in  said  -  county,  Nebraska,  and  the  proceeds  of  the  sale 
of  said  lands  will  more  than  pay  the  debts  of  said  ward,  and  said 
district  judge  has  ordered  a  sale  thereof  upon  the  filing  by  the  said 
C.  D.,  guardian,  of  the  bond  required  by  law: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that  if  the 
eaid  C.  D.,  guardian  of  the  estate  of  A.  B.,  a  minor,  shall  account 
before  said  district  judge  for  all  the  proceeds  of  said  sale  that  shall 
remain  after  the  payment  of  the  debts  and  charges  against  his  said 
ward,  and  dispose  of  the  same  according  to  law,  then  these  presents 
to  be  null  and  void;  otherwise  to  be  and  remain  in  full  force  and 
effect. 

(Signed)  C.  D. 
E.  F. 
G.  H. 

The  foregoing  bond  and  sureties  approved  by  me  this  -  day  of 


(Signed)     W.  M., 
Judge  of  the  District  Court,  -  County. 

§  537.     The  rule  of  caveat  emptor. 

The  purchaser  at  a  guardian's  sale,  or  a  purchaser 
from  a  vendee  of  a  guardian  and  subsequent  pur- 
chasers, must  take  notice  at  their  peril  of  the  regular- 
ity of  the  proceedings  and  the  consequent  right  of  the 
guardian  to  convey  the  property.  Courts  have  uni- 
formly treated  guardians'  sales  as  strictly  judicial, 
and  calling  for  a  strict  application  of  the  rule  of 
caveat  emptor™ 

§  538.    Disposition  of  the  proceeds. 

If  the  sale  is  made  for  the  maintenance  of  the  ward 
and  his  family,  or  the  education  of  the  ward,  the  guard- 

as  Bachelor  v.  Korb,  58  Neb.  122,  78  N.   W.  485. 

(893) 


§538  PROBATE   AND  ADMINISTRATION.  [Chap.  38 

ian  shall  apply  the  proceeds  for  that  purpose  so  far  as 
necessary,  and  shall  put  out  the  residue,  if  any,  on 
interest,  or  invest  it  in  the  best  manner  in  his  power, 
until  the  capital  shall  be  wanted  for  the  maintenance  of 
the  ward  and  his  family,  or  for  the  education  of  the 
ward,  if  a  minor,  or  the  children  of  a  ward  who  is  a 
drunkard  or  an  incompetent  person,  in  which  case  the 
principal  may  be  used  for  that  purpose  as  far  as  may 
be  necessary,  in  like  manner  as  if  it  had  been  personal 
estate  of  the  ward.64  If  sold  for  the  purpose  of  rein- 
vestment, the  guardian  shall  make  the  investment 
according  to  his  best  judgment,  or  in  pursuance  of 
any  order  that  shall  be  made  by  the  district  court.65 
The  guardian  is  obliged  to  apply  the  proceeds  of  the 
sale  for  that  purpose  for  which  the  sale  was  author- 
ized,66 and  the  purchaser  has  no  interest  in  the  applica- 
tion of  the  proceeds.  His  interest  in  the  matter  ceases 
as  soon  as  he  pays  the  money.67  The  court  may  in- 
clude in  the  order  for  confirmation  an  order  for  the 
investment  of  the  proceeds  of  the  sale,  or  a  part 
thereof,  in  such  securities  as  he  shall  deem  to  be  for  the 
benefit  of  the  ward.  For  the  purposes  of  descent,  the 
proceeds  of  the  sale  of  the  guardian's  real  estate  are 
considered  as  still  retaining  their  character  as  realty,68 
but  they  lose  that  character  and  become  personalty  as 
soon  as  transmitted  to  an  infant.69 

64  Kev.  Stats.,  c.  18,  §  138,  [1667]. 

65  Rev.  Stats.,  c.  18,  §  139,  [1669];  L.  O.  L.,  §  1349. 

66  Strong  v.  Moe,  8  Allen  (Mass.),  125;  Harding  v.  Lamed,  4  Allen 
(Mass.),  426. 

67  Mulford  v.  Beveridge,  78  111.  455. 

«s  Rev.  Stats.,  c.  18,  §  141,  [1680];  L.  O.  L.,  §§  1356,  1362. 
69  Dyer  v.  Cornell,  4  Pa.  359;   Holmes'  Appeal,  53  Pa.  339;  Kent, 
Com.,  230. 

(894) 


Chap.  38]  GUARDIANS'  SALES.  §  539 

If  the  guardian  has  obtained  authority  to  complete 
a  real  estate  contract  or  option  made  by  a  decedent  in 
his  lifetime,  the  court  may  authorize  him  to  execute  a 
note  or  notes  and  mortgage  on  the  purchase  price.70 

§  539.    Actions  for  recovery  of  lands  sold  by  guard- 
ians. 

No  action  for  the  recovery  of  real  estate  sold  by  a 
guardian  can  be  brought  by  the  ward  or  any  person 
claiming  under  him,  unless  it  shall  be  commenced 
within  five  years  next  after  the  termination  of  the 
guardianship,  excepting  only  that  persons  out  of  the 
state,  and  minors  and  others  under  legal  disability  to 
sue  at  the  time  when  the  cause  of  action  shall  accrue, 
may  commence  their  action  at  any  time  within  five 
years  next  after  the  removal  of  their  disability,  or 
after  their  return  to  this  state.71  The  validity  of  these 
sales  is  more  frequently  tested  in  actions  of  this  kind 
than  in  the  proceedings  for  the  sale. 

As  a  general  rule,  a  guardian's  sale  cannot  be  at- 
tacked collaterally  except  for  the  existence  of  certain 
irregularities  enumerated  by  the  statute,  and  which 
are  statutory  grounds  for  holding  the  sale  invalid,  or 
some  irregularity  which  goes  to  tlie  jurisdiction  of  the 
judge  or  the  court  which  granted  the  license.72  In 
such  actions,  the  sale  shall  not  be  avoided  on  account 
of  any  irregularity  in  the  proceedings,  provided  it  shall 
appear — First,  that  the  guardian  was  licensed  to  make 

70  Bev.  Stats.,  c.  18,  §  178,  [1717] ;  L.  O.  L.,  §  1350. 

71  Seward  v.  Didier.  16  Neb.  64,  20  N.  W.  12. 

72  Walker    v.    Goldsmith,    14    Or.    125,    12    Pac.    537;    Huberman    v. 
Evans,  46  Neb.  784,  65  N.  W.  1045;  Scarf  v.  Aldrich,  97  Cal.  360,  32 
Pac.  324;  Davidson  v.  Bates,  111  Ind.  391,  12  N.  E.  687. 

(895) 


§  539  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

the  sale  by  a  district  court  of  competent  jurisdiction; 
second,  that  he  gave  a  bond  which  was  approved  by 
the  judge  of  the  district  court,  in  case  any  bond  was 
required  by  the  court  upon  granting  the  license;  third, 
that  he  took  the  oath  prescribed  in  this  subdivision; 
fourth,  that  he  gave  notice  of  the  time  and  place  of 
sale,  as  prescribed  by  law;  fifth,  that  the  premises  were 
sold,  accordingly,  at  public  auction,  and  are  held  by 
one  who  purchased  in  good  faith.73  If  all  these  statu- 
tory requirements  have  been  complied  with,  and  the 
court  has  acquired  jurisdiction  of  the  premises,  though 
the  proceedings  may  have  been  grossly  irregular,  and 
the  sale  such  a  one  as  the  court  would  set  aside  upon 
an  appeal,  it  would  be  sustained  in  a  collateral  action.74 
All  other  provisions  of  the  law  regulating  sales  are 
presumed  by  the  courts  to  be  regular.75 

The  act  to  cure  defects  in  deeds,76  by  which  a  guard- 
ian's  deed  on  the  sale  of  his  ward's  real  estate  for  a 
valuable  consideration,  which  consideration  has  been 
paid  to  the  guardian  or  his  successor  in  good  faith,  and 
which  sale  has  not  been  set  aside  by  the  county  court 
but  has  been  confirmed  or  acquiesced  in  by  such  court, 
makes  the  deed  good  although  the  guardian  failed  to 
take  the  statutory  oath  before  fixing  the  time  and  place 
of  sale  as  the  statute  demands.77 

73  Rev.  Stats.,  c.  18,  §  164,  [1703];  L.  O.  L.,  §  1335. 

74  Larimer  v.  Wallace,  36  Neb.  444,  54  N.  W.  835;  McCullough  v. 
Estes,  20  Or.  349,  25  Pac.  724. 

75  Hobart  v.  Upton,  2  Saw.  302;  Gager  v.  Henry,  5  Saw.  237;  Walker 
v.  Goldsmith,  14  Or.  125,  12  Pac.  537;  McCullough  v.  Estes,  20  Or. 
349,  25  Pac.  724. 

76  Laws  1899,  p.  63;  L.  0.  L.,  §  7164. 

77  Fuller  v.  Hager,  47  Or.  242,  83  Pac.  782.     Section  7164  appears 
to   have  been   enacted   as  a  curative   section,   applying   only   to   sales 
previous  to  its   enactment,  February  18,  1899,  but  the  court  in  the 

(896) 


Chap.  38]  GUARDIANS'  SALES.  §§540,541 

§  540.     Estoppel  of  former  ward. 

If  after  a  minor  ward  becomes  of  age,  or  after  the  in- 
competency  of  an  adult  ward  is  removed,  he  makes  a 
settlement  with  his  former  guardian  and  receives 
money  from  him  with  knowledge  that  a  portion  of  the 
funds  is  derived  from  the  sale  of  his  lands,  he  will  be 
held  to  have  ratified  or  confirmed  the  sale,  and  is 
estopped  from  denying  its  validity.78  If  he  received 
the  money  with  knowledge  that  it  was  a  part  of  such 
proceeds,  his  lack  of  knowledge  of  gross  irregularities 
in  the  sale  does  not  change  the  rule.78 

If  he  received  no  part  of  the  proceeds  on  such  set- 
tlement,80 though  they  may  have  been  used  for  his 
support,  maintenance  and  education,  the  doctrine  of 
estoppel  does  not  apply.81 

§  541.    Action  by  party  claiming  adversely  to  the 

former  ward. 

The  provisions  of  the  statute  defining  the  proceed- 
ings necessary  for  a  valid  sale  of  a  ward's  lands  are 
for  the  benefit  of  the  ward.  No  one  claiming  ad- 

Fuller  case  treated  it  as  one  of  general  application.  As  taking  the 
oath  has  been  held  not  a  jurisdictional  defect,  the  subdivisions  requir- 
ing a  bond  and  notice  would  probably  follow  the  same  rule,  that  is, 
that  except  in  case  of  fraud,  failure  to  comply  with  them  could  only 
be  raised  on  confirmation  or  motion  to  set  aside  the  order.  Under 
this  section,  also,  the  purchaser  in  good  faith,  if  he  has  not  already 
received  a  deed,  is  entitled  to  one. 

78  Handy   v.   Noonan,  51   Miss.   166;   Hatcher  v.  Briggs,  6  Or.   31; 
Brazee  v.  Schofield,  2  Wash.  Ter.  209,  3  Pac.  265. 

79  Borcher  v.  McGuire,  85  Neb.  646,  124  N.  W.  Ill;  Kulp  v.  Heimann, 
90  Neb.  167,  133  N.  W.  206. 

80  Kazebeer  v.  Nunemaker,  82  Neb.  732.  118  N.  W.  646. 

81  Rowe  v.  Griffiths,  57  Neb.  488,  78  N.  W.  20;  Wilkinson  v.  Filby, 
24  Wis.  441. 

57— Pro.  Ad.  (897) 


§  542  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

versely  to  him  or  under  any  title  not  traced  to  him 
can  question  the  validity  of  the  sale,82  even  though  the 
ward  was  defrauded  by  the  sale.83 

§  542.    Collateral  attack  on  the  license. 

The  principles  governing  collateral  attack  on  guard- 
ians'  sales  of  real  estate  are  substantially  the  same 
as  in  the  case  of  attack  on  executors'  and  adminis- 
trators' sales.  A  valid  license  can  only  be  granted  to 
a  person  who  is  the  duly  appointed  guardian  of  the 
ward  whose  property  is  to  be  sold.84 

Letters  issued  on  the  estate  of  an  adult  ward  without 
notice,85  or  from  a  county  in  which  the  ward  had  no 
property  and  was  not  a  resident,  give  him  no  rights.86 
A  defect  in  the  authentication  of  the  letters  of  a 
foreign  guardian  is  cured  by  the  order  of  confirmation 
in  which  the  court  found  that  the  guardian  was  duly 
qualified.87 

His  license  must  issue  under  the  seal  of  a  "district 
court  of  competent  jurisdiction,"  by  which  is  meant, 
in  the  case  of  a  domestic  guardian,  that  of  the  county 
in  which  he  was  appointed,88  and  in  the  case  of  a 
foreign  representative,  that  of  the  county  in  which  his 

82  Michel  v.  Borders,  129  Ind.  529,  29  N.  E.  29. 

83  Marvin  v.  Schilling,  12  Mich.  46. 

84  Wells  v.  Stecklenberg,  50  Neb.  670,  70  N.  W.  242;  Grier's  Appeal, 
101  Pa.  412;  McKee  v.  Thomas,  9  Kan.  343;  Paty.  v.  Smith,  50  Cal.  153. 

85  Severns  v.  Gerke,  3  Saw.  353. 

86  In  re  Hubbard,  82  N.  Y.  90;  Palmer  v.  Oakly,  2  Doug.  (Mich.) 
433;  Shroyer  v.  Richmond,  16  Ohio  St.  455. 

87  Myers  v.  McGavock,  39  Neb.  843,  58  N.  W.  522. 

88  Huberman  v.  Evans,  46  Neb.  784,  65  N.  W.  1045. 

(898) 


Chap.  38]  GUARDIANS'  SALES.  §543 

letters  were  filed,89  such  being  the  only  courts  having 
jurisdiction.90 

The  sale  will  be  good,  though  the  description  in  the 
license  was  defective  or  erroneous,  if  it  provided  suffi- 
cient means  for  identifying  the  property.91 

A  sale  without  any  license  whatever  is  void.93 

§  543.    Collateral  attack — Bond  and  oath. 

A  guardian's  sale  without  a  bond  being  given  is 
void  on  collateral  attack  by  the  former  ward.93  If  it 
contains  no  indorsement  of  approval  by  the  court,  evi- 
dence may  be  given  to  show  that  it  actually  was  so 

89  Eev.  Stats.,  c.  18,  §  155,   [1694]. 

90  Spellman  v.  Dowse,  79  HI.  66. 

91  Huberman  v.  Evans,  46  Neb.  784,  65  N.  W.  1045;  Bray  v.  Adams, 
114  Mo.  486,  21   S.  W.  853;  Muarr  v.  Parrish,  26   Ohio   St.  636.     In 
Huberman  v.  Evans,  the  petition  prayed  for  the  sale  of  lots  4,  5    and 
6.  block  W,  Lowe's  addition  to  the  city  of  Omaha,  Nebraska,  together 
with    other    property     There    was    no    block    W   in    Lowe's    addition. 
The  wards  owned  lots  4,  5   and  6,  in  block  U.     A  license  was  granted 
the  guardian  for  the  sale  of  the  property  as  described  in  the  petition. 
The  notice  of  sale  correctly  described  the  lots  as  4,  5    and  6,  in  block 
U.     A    sale   was    had   and    confirmed,    and    deed    ordered,   which    was 
subsequently  executed  and   delivered,  and  which  contained  a  correct 
description  of  all  the  lots  owned  by  the  wards.     The  court  held  that 
the  sale  divested  the  wards  of  all  their  interest,  placing  their  reasons 
therefor  upon  the  principle  that,  in  the  proceedings  to  sell  the  real 
estate  of  a  ward,  the  description  need  not  be  more  specific  and  definite 
than  is  required  of  a  conveyance  of  real  estate  and  that  a  deed  whose 
granting   clause    conveyed   all   the    grantor's    lands    within   a   certain 
county  or  city  is  not  void  for  indefiniteness. 

92  Ludlow's    Heirs    v.   Park,    4    Ohio    St.    5;    Newcomb's   Lessee    v. 
Smith,  5  Ohio   St.  448;   Bell's  Appeal,   66   Pa.  492;   Toppett  v.   Mize, 
30    Tex.    361. 

93  Bachelor  v.  Korb,  58  Neb.  122,  78  N.  W.  485. 

(899) 


§  544  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

approved.94  A  failure  to  take  the  oath  also  invali- 
dates the  sale.  If  taken  after  the  date  is  fixed,  it  is  a 
nullity.95  An  oath  taken  by  the  attorney  retained  by 
the  guardian  to  take  charge  of  the  proceedings  is  also 
void.96 

§  544.    Collateral  attack — Notice  of  sale  and  sale. 

While  notice  of  the  sale  must  be  given  by  both 
posting  and  publication  as  provided  by  law,  and  the 
statute  directs  how  proof  of  giving  the  notice  shall  be 
made,  the  method  is  not  .xclusive,  and  other  evidence 
is  admissible  on  collateral  attack  to  show  that  notice 
was  actually  given.97 

A  guardian  is  without  authority  to  purchase  his 
ward's  real  estate  at  his  own  sale,  either  directly  or 
through  a  third  party.98  A  purchaser  of  such  lands 
which  have  been  bid  in  by  the  guardian  during  their 
minority  or  until  after  the  statute  of  limitations  has 
expired  is  chargeable  with  notice  of  his  want  of  title.99 

The  sale  may  be  set  aside  for  fraud  or  collusion  be- 
tween the  guardian  and  the  purchaser.100 

94  Section  533,  supra. 

95  Card  v.  Deans,  84  Neb.  4,  120  N.  W.  440;  Bachelor  v.  Korb,  58 
Neb.  122,  78  N.  W.  485;  Ryder  v.  Flanders,  30  Mich.  336. 

96  Levara  v.  McNeeny,  5  Neb.  Unof.  318,  98  N.  W.  679. 

97  Larimer  v.  Wallace,  36  Neb.  444,  54  N.  W.  825. 

98  Brown  v.  Fisher,  77  Minn.  1,  79  N.  W.  494;  Frazier  v.  Jeakins, 
64  Kan.  615,  68  Pac.  24;  Aaronstein  v.  Irvine,  49  La.  Ann.  1478,  22- 
South.  405. 

99  Kazebeer  v.  Nunemaker,  82  Neb.  732,  118  N.  W.  646;  Albers  v. 
Kosleuh,  68  Neb.  523,  94  N.  W.  521,  97  N.  W.  646;  Neary  v.  Neary, 
70  Neb.  319,  97  N.  W.  302. 

100  Southern   Marble    Co.    v.    Stegall,    90    Ga.    236,    15    S.    E.    806; 
Dornetizer  v.  German  Sav.  Soc.,  23  Wash.  132,  32  Pac.  682. 

(900) 


Chap.  38]  GUARDIANS'  SALES.  §  545 

§  545.    Mortgage  of  minor's  lands — Application. 

A  guardian  has  no  power  to  encumber  his  ward's 
lands  by  mortgage,  except  under  a  license  granted  him 
by  a  court  which  is  given  by  statute  jurisdiction  over 
the  same.101  The  district  court  of  the  county  from 
which  letters  issued,  or  a  judge  thereof  sitting  at 
chambers  anywhere  within  the  judicial  district,  has 
power  to  grant  such  license  to  the  guardian  of  a  minor 
whenever  it  appears  necessary  to  obtain  funds  for  the 
support  or  education  of  the  ward.  The  proceedings 
are  commenced  by  the  presentation  of  a  petition, 
which  should  be  substantially  in  the  same  form  as  a 
petition  for  license  to  sell  the  lands  for  the  same  pur- 
poses, with  additional  allegations  setting  out  the  par- 
ticular grounds  which  would  make  a  mortgage  prefer- 
able to  a  sale.  An  order  is  thereupon  entered  fixing 
the  date  for  a  hearing,  which  cannot  be  less  than 
eleven  days  from  its  date.  A  copy  of  the  petition 
with  notice  must  be  served  on  the  minor  in  the  same 
manner  as  a  summons  at  least  ten  days  before  the 
hearing.102 

The  Oregon  county  court  has  no  jurisdiction  to 
license  any  guardian  to  mortgage  the  estate  of  his 
ward  for  any  purpose.103  Although  section  1328, 
L.  0.  L.,  provides  that  a  guardian  may  mortgage  the 
real  estate  of  his  ward  for  the  purpose  of  obtaining 
funds  for  his  support,  maintenance,  support  of  his 
family  or  the  care  of  his  estate,  there  is  no  section  of 
the  statutes  giving  the  county  court  power  to  author- 
ize the  same,  and  it  is  a  doubtful  question  whether 
under  the  code  the  circuit  court  has  such  power. 

101  Trutch  v.  Bunnell,  11  Or.  58,  4  Pac.  588. 

102  Rev.  Stats.,  c.   18,   §§  165,  166,    [1704],    [1705]. 

103  Trutch  v.  Bunnell,  11  Or.  58,  4  Pac.  588. 

(901) 


§  545  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

Form  No.  246. 

PETITION   BY    GUARDIAN    FOR    AUTHORITY    TO    MORTGAGE 
REAL  ESTATE. 

In  the  District  Court   of  County,   Nebraska. 

In  the  Matter  of  the  Application  of  C.  D.,  Guardian  of  A.  B.,  a  Minor, 
for   License   to    Mortgage    Real    Estate. 

Comes  now  C.  D.,  guardian  of  A.  B.,  a  minor,  and  respectfully 
represents  unto  the  court  that  said  A.  B.  is  of  the  age  of  18  years 

and  a  resident  of ,  in  said  county;  that  said  ward  is  the  owner 

of  the  following  described  real  estate,  ,  consisting  of  a  house 

and  lot  in  the  city  of ,  which  is  of  the  value  of  —  dollars, 

and  is  free  and  clear  of  all  liens  and  encumbrances;  that  said  A.  B. 
is  possessed  of  no  personal  property  save  and  except  personal  belong- 
ings, and  has  no  income  save  and  except  what  he  may  earn  by  labor 
and  the  sum  of dollars  per  month  rent  from  said  real  estate. 

That  said  A.  B.  has  completed  the  high  school  course  in  the  public 

schools  of  said  city  of ,  and  is  desirous  of  attending  the  state 

university   to  fit  himself   for   the   profession   of   ,   and   will   be 

unable  to  earn  a  sufficient  amount  during  his  vacations  to  pay  his 
necessary  expenses  while  at  said  university,  and  that  the  total  amount 
necessary  to  defray  the  expenses  of  said  A.  B.  at  said  university  until  he 
becomes  of  lawful  age,  after  first  deducting  the  income  from  said 
real  estate,  is  about  the  sum  of  dollars. 

That  your  petitioner  will  be  able  to  borrow  the  sum  of dol- 
lars, to  be  secured  by  a  mortgage  on  said  premises  due  in  five  years, 
with  interest  at  six  per  cent  per  annum  payable  annually. 

Your  petitioner  therefore  prays  that  an  order  of  said  court  be  made 
and  entered  authorizing  and  directing  him,  said  C.  D.,  guardian  as 
aforesaid,  to  execute  and  deliver  a  mortgage  on  said  premises  in  the 

sum  of dollars,  with  interest  at  six  per  cent  per  annum,  payable 

annually,  and  accompanying  note  or  notes,  for  the  purpose  of  the 
support  and  education  of  said  A.  B. 

(Signed)     C.   D., 

Guardian. 

[Add  verification.] 

(902) 


Chap.  38]  GUARDIANS'  SALES.  §  5-1G 

Form  No.  247. 

NOTICE    TO    WARD. 
State  of  Nebraska, 

County  of , — ss. 

To  A.  B. 

You  are  hereby  notified  that  C.  D.,  guardian  of  you,  the  said  A.  B., 
will  on  the  day  of  ,  19 — ,  make  application  to  the  dis- 
trict court  of  said  county,  at  the  hour  of  10  A.  M.  of  said  day,  or 
as  soon  thereafter  as  counsel  can  be  heard,  for  an  order  authorizing 
said  C.  D.  to  execute  a  mortgage  on  lands  belonging  to  you,  said 
A.  B.  A  copy  of  said  application  is  hereto  attached. 

Dated  this  day  of  ,  19 — . 

C.   D., 
Guardian. 

§  546.    Proceedings  on  the  application. 

On  the  day  fixed  for  the  hearing,  the  court  may  with- 
out further  notice  enter  the  order  prayed  for,  or  direct 
a  postponement  of  the  matter,  and  order  further  notice 
by  publication,  or  otherwise,  or  direct  a  reference  for 
the  purpose  of  ascertaining  the  propriety  of  ordering 
the  mortgage.104  The  order  granting  the  petition  must 
be  made  a  matter  of  record.  It  should  give  the  amount 
and  terms  of  the  mortgage  and  authorize  the  guardian 
to  execute  the  same  in  his  own  name.105 

Before  executing  the  mortgage  a  bond  in  double  the 
amount  thereof,  conditioned  to  account  for  the  pro- 
ceeds, must  be  given  by  the  guardian.108  When  the 
application  is  resisted,  costs  may  be  awarded  the  pre- 
vailing party,  and  when  satisfied  that  no  reasonable 
grounds  exist  for  the  application,  they  may  be  taxed 
against  the  guardian  individually.107 

104  Rev.  Stats.,  c.  18,  §  167,  [1706]. 

105  Rev.  Stats.,  e.  18,  §  170,  [1709]. 

106  Rev.  Stats.,  c.  18,  §  168,  [1707]. 

107  Rev.  Stats.,  c.  18,  §  169,  [1708]. 

(903) 


§  547  PROBATE  AND  ADMINISTRATION.  [Cliap.  38 

Form  No.  24.8. 

ORDER   AUTHORIZING   GUARDIAN   TO   EXECUTE   MORTGAGE. 
In  the   District  Court   of  County,  Nebraska. 

In   the   Matter   of   the    Application   of   C.   D.,    Guardian    of   A.   B.,    a 
Minor,  for  License  to  Mortgage  Real  Estate. 

Now,  on  this  day  of ,  19 — ,  this  matter  came  on  to  be 

heard  on  the  application  of  C.  D.,  guardian  of  said  A.  B.,  for  a 
license  to  mortgage  real  estate  of  said  A.  B.,  for  the  purpose  of 
obtaining  funds  for  the  support  of  said  A.  B. 

It  appearing  to  the  court  that  notice  of  the  time  of  presenting  said 
application  has  been  given  to  said  A.  B.  in  manner  and  form  as  pro- 
vided by  law,  and  the  said  A.  B.  being  present,  and  it  further  appear- 
ing to  the  court,  after  hearing,  that  the  best  interests  of  said  A.  B. 
will  be  subserved  by  empowering  said  petitioner  to  execute  a  mort- 
gage on  the  following  premises,  the  property  of  said  ward,  -  — , 
for  the  purpose  of  obtaining  funds  for  the  education  of  said  ward: 

It  is  therefore  ordered  that  said  petitioner,  C.  D.,  be  and  hereby  is 
authorized  and  empowered  to  execute  a  mortgage  in  the  sum  of  - 
dollars,  with  interest  thereon  at  six  per  cent,  payable  annually,  due 
five   years   from   date,   together   with   the   note   or   notes   which   said 
mortgage   is   to   be   given   to   secure.     Bond   of   guardian   previous   to 

executing  said  mortgage  fixed  at  dollars. 

W.    M., 
District  Judge. 

§  547.    Sales  of  the  interest  of  an  insane  spouse  in  real 

estate. 

When  either  husband  or  wife  has  been  insane  for 
three  years  and  incapable  of  executing  any  convey- 
ance of  his  or  her  interest  in  the  real  estate  of  the 
other,  including  the  homestead  property,  the  district 
court  of  the  county  of  which  such  insane  person  is  a 
resident  has  power  to  authorize  the  legally  appointed 
guardian  of  such  insane  person  to  sell  and  convey  such 
interest.108 

108  Rev.  Stats.,  c.  18,  §§  171,  177,  [1710],  [1716]. 

(904) 


Chap.  38]  GUARDIANS'  SALES.  §  547 

A  verified  petition  must  be  filed  by  the  guardian  in 
the  office  of  the  clerk  of  the  district  court,  together 
with  the  written  consent  of  the  spouse  of  such  insane 
person  to  the  granting  of  the  prayer  thereof,  and  his 
or  her  agreement  to  pay  whatever  costs  of  said 
proceeding  may  be  taxed  against  him  or  her.109 

Form  No.  249. 

PETITION    FOR    LICENSE    TO    SELL    INTEREST    OF    INSANE 
SPOUSE  IN  REAL  ESTATE. 

In   the  District  Court   of  County,  Nebraska. 

In  the  Matter  of  the  Application  of  C.  D., 
Guardian  of  A.  B.,  an  Insane  Person, 
for  License  to  Sell  the  Interest  of 
said  A.  B.  in  Real  Estate. 

Comes  now  C.  D.  and  represents  unto  the  court  that  one    A.  B.,  a 

resident    of    said    county,    was    on    the    day    of   ,    19 — , 

adjudged  by  the  commissioners  of  insanity  of  said  county  insane  and 
a  fit  subject  for  confinement  in  a  hospital  for  the  care  and  treatment 
of  insane  people,  and  that  for  more  than  three  years  last  past  said 
A.  B.  has  been  insane  and  incapable  of  executing  a  deed,  relinquish- 
ment  or  conveyance  of  real  estate. 

n. 

That  on  the  day  of  ,  19 — ,  letters  of  guardianship  of 

the  person  and  estate  of  said  A.  B.  were  issued  to  your  said  petitioner 
out  of  and  under  the  seal  of  the  county  court  of  said  county,  and  he 
is  now  the  duly  appointed  guardian  of  her  the  said  A.  B. 

III. 
That  C.  B.  of  said  county  is  the  husband  of  said  A.  B.  and  is  the 

owner  of  the  following  described  real  estate,  ,  which  is  of  the 

value  of  dollars,  and  that  he  is  desirous  of  selling  the  same, 

and  has  given  his  written  consent  to  the  prayer  of  this  petition,  and 
his  written  agreement  to  pay  whatever  costs  of  this  proceeding  may 
be  taxed  against  him. 

iou  Kev.  Stats.,  c.  18,  §§  172,  176,  [1711],  [1715], 

(905) 


§  548  PROBATE  AND  ADMINISTRATION.  [Cliap.  38 

IV. 

That  E.  F.  and  G.  H.  of  said  county  are  the  children  of  said  A.  B. 
and  said  C.  B.,  and  their  sole  prospective  heirs,  and  that  the  present 
value  of  the  interest  of  said  A.  B.  in  said  land  by  virtue  of  her 
marital  relation  with  said  C.  B.  is  the  sum  of  dollars. 

Your  petitioner  therefore  prays  that  a  date  be  fixed  for  the  hearing 
on  this  petition,  that  an  order  to  show  cause  why  the  prayer  thereof 
should  not  be  granted  issue,  service  had  as  by  law  required,  and  that 
upon  said  hearing  an  order  of  said  court  be  made  and  entered  em- 
powering petitioner  to  sell  said  interest  of  said  A.  B.  in  said  real 
estate. 

(Signed)     C.   D., 
Guardian  of  A.  B. 

[Add  verification,  Form  No.  5.] 

§  548.    Hearing  and  bond. 

Service  of  the  order  to  show  cause  is  had  in  the  same 
manner  as  in  the  case  of  guardians'  sales,  and  when  it 
is  completed,  a  guardian  ad  litem  must  be  appointed 
who  shall  ascertain  the  propriety  and  good  faith  and 
necessity  of  the  prayer  of  the  petitioner,  and  may  re- 
sist the  petition  by  making  any  proper  legal  or  equi- 
table defense  thereto.110  If  the  proposed  sale  is 
approved  and  the  guardian  found  a  proper  person  to 
make  it,  a  decree  may  be  entered  fixing  the  value  of 
the  interest  of  the  insane  spouse,  and  authorizing  a 
sale  at  public  auction  or  private  sale,  conditioned  on 
the  giving  of  a  bond  to  be  approved  by  the  court  to 
faithfully  perform  his  duties  in  relation  to  the  sale  and 
to  account  for  the  proceeds.111 

The  interest  of  the  insane  spouse  in  the  lands  of  the 
other  is  that  which  he  or  she  acquires  by  virtue  of  the 
marital  relation.  It  is  substantially  a  substitute  for 

HO  Rev.  Stats.,  c.  18,  §  172,  [1711]. 
111  Eev.  Stats.,  e.  18,  §  173,  [1712]. 

(906) 


Chap.  38]  GUARDIANS '  SALES.  §  548 

the  inchoate  right  of  dower  or  curtesy  at  common  law, 
its  value  depending  on  the  number  of  children  of  the 
marriage,  the  existence  of  children  by  a  former  mar- 
riage of  the  owner  of  the  fee  and  his  or  her  expectancy 
of  life. 

Form  No.  250. 

BOND    OF   GUARDIAN    ON    SALE    OF   INTEREST    OF   mSANE 
SPOUSE  IN  LANDS. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  as  principal,  and 
the  X.  Y.  Surety  Company,  of ,  as  surety,  are  jointly  and  sever- 
ally held  and  firmly  bound  unto  the  district  court  of  county, 

Nebraska,   in   the   penal   sum   of  dollars,   for  which   payment 

well  and  truly  to  be  made  we  do  hereby  bind  ourselves,  our  heirs, 
executors,  administrators  and  successors,  by  these  presents. 

Dated  this  day  of ,  19 — . 

Now,  therefore,  the  condition  of  this  obligation  is  such  that  whereas 

an    order    has    been    entered    in    the    district    court    of   county, 

Nebraska,  authorizing  and  empowering  said  above-bound  C.  D.,  guard- 
ian of  A.  B.,  an  insane  person,  to  sell  the  interest  of  said  A.  B., 
wife  of  one  C.  B.,  in  certain  real  estate  of  said  C.  B.,  if  the  said  above- 
bound  C.  D.  shall  faithfully  perform  his  duties  in  relation  to  said  sale 
and  conveyance  and  faithfully  account  for  the  proceeds  of  said  sale, 
this  obligation  to  be  void;  otherwise  to  be  and  remain  in  full  force  and 
effect. 

(Corporate  Seal)  (Signed)     C.  D. 

X.  Y.  Co. 
By  L.  M.,  Vice-Pres. 

C.  F.,  Local  Secretary. 

Form  No.  251. 

OEDER    EMPOWERING    GUARDIAN    OF   INSANE    PERSON    TO 
SELL  INTEREST  IN   LANDS. 

[Title   of   Cause  and   Court.] 

Now,  on  this  day  of  ,  19 — ,  this  matter  came  on  for 

hearing  on  the  petition  of  C.  D.,  guardian  of  said  A.  B.,  for  an 
order  empowering  him  to  sell  and  convey  the  interest  of  said  A.  B. 

in  the  following  described  real  estate,  ,  the  answer  of  J.  A., 

guardian  ad  litem,  and  the  evidence,  and  was  submitted  to  the  court. 

(907) 


§  549  PROBATE  AND  ADMINISTRATION.  [Chap.  38 

On  consideration  whereof  the  court  finds  that  service  of  the  order  to 
show  cause  heretofore  issued  in  said  matter  has  been  had  as  directed 
by  said  court,  that  said  application  of  said  petitioner,  C.  D.,  is  made 
in  good  faith,  that  it  is  necessary  and  for  the  best  interest  of  said 
A.  B.  that  her  interest  in  said  real  estate  be  sold  and  conveyed,  that 
said  interest  is  an  inchoate  interest,  by  virtue  of  the  marital  rela- 
tion existing  between  said  A.  B.  and  said  C.  B.,  consisting  of  an 
undivided  one-third  thereof,  and  the  present  value  of  said  interest  is 
the  sum  of  dollars. 

It  is  therefore  ordered  that  said  C.  D.,  guardian,  be  and  he  hereby 
is  authorized  to  sell  at  private  sale  the  said  interest  of  said  A.  B. 

in  said  real  estate  at  a  sum  not  less  than dollars,  and  that 

before  making  said  sale  he  execute  and  deliver  to  the  clerk  of  this 

court  his  bond  in  the  sum  of  dollars,  to  be  approved  by  said 

court,  conditioned  as  provided  by  law. 

(Signed)     W.   M., 
District   Judge. 

§  549.    Sale  and  confirmation. 

There  is  no  time  within  which  the  power  to  sell  must 
be  exercised.  It  may  be  revoked  by  the  court  when 
the  insane  person  becomes  of  sound  mind,  such  rev- 
ocation having  no  effect  on  prior  conveyances.112  If 
the  sale  is  at  public  auction,  notice  must  be  given  the 
same  as  in  guardians'  sales  of  real  estate  for  invest- 
ment. In  all  cases  the  sale  must  be  reported  to  the 
court,  and  if  it  appears  regular  and  no  sufficient  cause 
is  shown  for  setting  it  aside,  it  will  be  confirmed  and 
the  guardian  directed  to  execute  a  deed  to  the  pur- 
chaser.113 The  court  has  power  to  tax  the  whole  or 
any  part  of  the  costs,  including  a  reasonable  fee  for 
the  guardian  ad  litem  to  the  insane  spouse,  and  they 
must  be  paid  before  the  delivery  of  the  deed.114 

112  Kev.  Stats.,  c.  18,  §  175,  [1714]. 

113  Eev.  Stats.,  c.  18,  §  174,  [1713]. 

114  Eev.  Stats.,  c.  18,  §  176,  [1715]. 

(908) 


CHAPTER  XXXIX. 
ACCOUNTS  AND  SETTLEMENTS  OF  GUARDIANS. 

§  550.  Annual  Account  of  Guardian. 

551.  Guardian's  Account — Debit  Side. 

552.  Guardian's  Accounts — Credits. 

553.  Power  to  Compel  Interlocutory  Accounting. 

554.  Discharge  of   Guardian. 

555.  Settlement  Out  of  Court. 

556.  Action  to  Set  Aside  Settlement. 

557.  Action  by  Ward  for  Property  Fraudulently  Transferred. 
358.  Final  Accounting  in  County  Clerk. 

559.  Hearing  on  Guardian's  Account. 

560.  Order  Allowing  Final  Account   of   Guardian. 

561.  Liability   of   Sureties   on   Guardian's  Bond. 

562.  Release   of   Sureties. 

563.  Action   on   Guardian's   Bond. 
563a.  Appeals  in  Guardianship  Matters. 

§  550.    Annual  account  of  a  guardian. 

The  bond  of  a  guardian  requires  him  to  make  and 
file  with  the  county  court  an  account  of  his  doings 
within  one  year  after  the  issue  of  letters,  and  at  such 
other  times  as  the  court  shall  direct.  In  order  that 
the  court  shall  have  full  knowledge  of  the  general 
condition  of  the  estate,  and  of  any  unfairness  or  wrong- 
doing of  the  guardian  in  the  management  of  the  funds 
of  the  ward,  it  is  the  general  practice,  even  though 
not  demanded  by  the  statute,  to  require  an  account  to 
be  rendered  every  year  thereafter  until  the  termina- 
tion of  the  guardianship.  The  annual  account  should 
show  all  the  transactions  between  the  guardian  and 
the  ward,  and  all  transactions  of  the  guardian  in  con- 
nection with  the  estate,  up  to  its  date.  It  should  show 

(909) 


§  551  PROBATE  AND  ADMINISTRATION.  [Chap.  39 

the  amount  received  from  all  sources,  the  amount  paid 
the  ward,  and  the  balance  in  the  guardian's  posses- 
sion. The  inventory  is  the  basis  of  the  first  annual 
account,  but  is  not  conclusive.  Either  party  may  show 
errors  or  omissions  therein.  These  annual  or  period- 
ical accounts  are  not  considered  by  the  courts  as 
conclusive  and  binding  upon  the  parties.1  They  are 
held  to  be  prima  facie  correct ;  but,  though  made  under 
oath  and  approved  by  the  court,  they  may  be  reopened 
or  readjusted  in  any  subsequent  annual  account,  or  in 
the  final  account.  Either  party  may  go  behind  them 
and  show  that  other  charges  should  be  included,  or 
that  the  charges  therein  made  are  not  just  and  proper.2 
A  joint  account  of  joint  guardians  stands  upon  the 
same  footing  as  that  of  a  sole  guardian,  and  may  be 
reopened  after  the  death  of  one  of  the  guardians,  on 
the  settlement  of  his,  the  survivor's,  accounts.3 

§  551.    Guardian's  account — Debit  side. 

The  general  rule  is  that  every  guardian  is  charg- 
able  with  all  the  income  from  the  real  estate  of  his 
ward,  with  the  value  of  all  the  personal  property  that 
came  into  his  hands  during  the  existence  of  the  trust, 
with  interest  on  deposits,  and  with  the  proceeds  of 
investments  made  by  him  of  the  ward's  property.  He 

1  Kidd  v.  Guibar,  63  Mo.  342;  In  re  Davis,  62  Mo.  453;  Douglas' 
Appeal,  82  Pa.  169;  Wall's  Appeal,  104  Pa.  14. 

2  Latham  v.  Myers,  57  Iowa,  519,   10   N.   W.   924;   West  v.  West's 
Admr.,  75  Mo.  204;  State  v.  Jones,  89  Mo.  470;  Davia  v.  Combs,  38 
N.  J.  Eq.  473;  Starrett  v.  Jameson,  29  Me.  504. 

3  Blake  v.  Pegram,  109  Mass.  541. 

(910) 


Chap.  39]  ACCOUNTING  OF  GUARDIANS.  §  551 

should  be  charged  with  at  least  savings  bank  interest 
on  funds  which  have  lain  idle  for  a  period  of  six 
months  or  more,4  with  a  loss  occurring  by  reason  of 
loans  without  having  first  obtained  directions  from 
the  court  concerning  the  security,5  losses  occurring 
when  no  specific  directions  for  investments  are  given 
him  by  the  county  court,6  and  due  diligence  in  looking 
into  the  value  of  the  security  has  not  been  shown,  or 
loans  have  been  made  without  security.7  Where  he 
makes  loans  or  investments  without  formal  applica- 
tion and  permission  from  the  court,  good  faith  and  a 
high  degree  of  business  ability  will  not  protect  him 
from  liability.8 

If  he  permits  funds  to  draw  savings  bank  interest 
for  a  long  time  when  they  could  have  been  invested  so 
as  to  bring  in  more  income,  he  should  be  charged  with 
what  he  ought  to  have  received.9 

He  should  not  be  held  liable  for  loss  of  funds  occur- 
ring by  the  failure  of  a  bank  in  which  they  were  de- 

4  White  v.  Parker,  8  Barb.  (N.  Y.)  48;  Worrell's  Appeal,  23  Pa.  44. 

5  In  re  O'Brien's  Estate,  80  Neb.  125,  113  N.  W.  1001;  In  re  Wil- 
son's  Estate,   90   Neb.   363,   133   N.   W.  447;  In  re   Carver,   118   Cal. 
73,  50  Pac.  22. 

6  Witty  v.  Witty,  10  Ky.  Law  Rep.  513,  40  S.  W.  457;  Brewer  v. 
Ernest,  81  Ala.  435,  2  South.  84;  Wyckoff  v.  Hulse,  32  N.  J.  Eq.  697; 
Covington  v.  Leak,  65  N.  C.  594. 

7  Probate  Judge  v.  Mathes,  60  N.  H.  433;  Lee  v.  Lee,  55  Ala.  590. 

8  Nagle  v.  Bobbins,  9  Wyo.  211,  62  Pac.  154,  796;  In  re  Shandoney, 
133  Cal.  387,  65   Pac.  877. 

9  Johnson  T.  Newton,  11  Hare,  169;  Moyle  v.  Moyle,  2  Russ.  &  M. 
710. 

(911) 


§  552  PROBATE   AND  ADMINISTRATION.  [Chap.  39 

posited  unless  the  circumstances  are  such  that  he  could 
have  known  that  it  was  in  a  critical  condition.10 

§  552.    Guardian's  account — Credits. 

A  guardian  is  entitled  to  credit  for  all  the  money 
paid  out  according  to  law  for  the  support  and  educa- 
tion of  the  ward,  the  payment  of  his  debts  and  the 
support  of  his  family.  In  cases  where  he  has  not  ob- 
tained an  order  of  court  fixing  the  amount  he  may 
pay  for  such  support  and  like  expenses,  it  may  be  de- 
termined on  the  hearing  on  the  final  account,11  for 
interest  on  money  advanced  by  him  to  the  ward,12  for 
necessary  costs  and  attorney  fees,  and  expenses  in- 
curred in  collecting  and  managing  the  estate.13  If  the 
attorney  fees  have  not  actually  been  paid,  and  there 
is  a  valid  contract  between  the  attorney  and  guardian 
for  their  payment,  the  court  may  allow  them  on  the 
hearing  and  direct  that  they  be  paid  directly  to  the 
attorney.14 

The  fees  to  which  a  guardian  is  entitled  for  his  ser- 
vices are  fixed  by  the  court  and  rest  largely  in  its  dis- 
cretion. He  is  entitled  to  such  an  amount  as  the  size 
and  character  of  the  estate,  the  nature  of  his  duties, 

10  In  re   Grammel's   Estate,   120  Mich.   487,   79  N.   W.   706;   In  re 
Hunt,  141  Mass.  515,  6  N.  E.  554. 

11  Ellis  v.  Soper,  111  Iowa,  631,  82  N.  W.  1041. 

12  Hayward   v.   Ellis,   13   Pick.    (Mass.)    273. 

13  In  re  Tolifaro,  113  Iowa,  747,  84  N.  W.  836;  In  re  Brady  (Idaho), 
79  Pac.  75;  Pyatt  v.  Pyatt,  44  N.  J.  Eq.  391,  15  Atl.  421;  Scheib  v. 
Thompson,  23  Utah,  564,  65   Pac.  499. 

14  Bailey  v.  Garrison,  68  Neb.  779,  94  N.  W.  990. 

(912) 


Chap.  39]          ACCOUNTING  OF  GUARDIANS.  §  553 

relationship  to  the  ward,  the  duration  of  the  trust, 
and  all  the  surroundings  and  circumstances  of  the  ward 
and  estate  seem  to  require.15  But  if  the  expenses  ap- 
pear large  and  there  was  much  litigation  largely  for  his 
own  benefit,  or  partly  for  his  benefit  and  partly  for  his 
ward,  the  charges  should  be  made  accordingly.16  If  he 
violates  any  statute,  or  order  or  decree  of  the  court,  and 
a  loss  thereby  occurs,  he  loses  his  right  to  pay  for  his 
services  and  also  has  to  make  good  the  loss.17  The 
court  may,  however,  if  the  circumstances  seem  to 
warrant  it,  allow  him  something  for  his  services. 

§  553.    Power  to  compel  interlocutory  accounting. 

A  person  under  guardianship  has  no  power  to  com- 
pel his  guardian  to  file  his  account  as  long  as  the  trust 
exists.  A  relative  or  person  interested  in  the  estate 
of  the  ward  may  make  such  application,  as  next  friend, 
to  compel  him  to  account  where  he  delays  doing  so  and 
the  circumstances  are  such  as  make  an  accounting 
desirable.18 

15  Gott  v.  Culp,  45  Mich.  265,  7  N.  W.  767;  In  re  Hogan,  134  Mich. 
361,  96  N.  W.  439;  Woomer's  Appeal,  144  Pa.  383,  22  Atl.  749. 

l«  In  re  Tolifaro,  113  Iowa,  747,  84  N.  W.  936;  Pierce  v.  Prescott, 
128  Mass.  140;  Moore  v.  Shields,  69  N.  C.  50. 

17  Starrett   v.   Jameson,   29   Me.  504;   Foteaux   v.   Le  Page,  6  Iowa, 
123;  Mattox  v.  Patterson,  60  Iowa,  434,  15  N.  W.  262;  Knowlton  v. 
Bradley,   17  N.  H.   458;  Farwell  v.  Steen,  46  Vt.   678. 

18  Trumpler  v.  Cotton,  109  Cal.  250,  41  Pac.  1033;  Monell  v.  M'onell, 
5  Johns.  Ch.   (N.  Y.)   283;   Clements  v.  Bamsay   (Ky.),  4  S.  W.  311. 

58— Pro.  Ad.  (913) 


§  553  PKOBATE  AND  ADMINISTRATION.  [Chap.  39 

Form  No.  252. 
GUARDIAN'S   ANNUAL   ACCOUNT. 

[Title  of  Cause  and  Court.] 

The  following  is  a  true  statement  of  the  account  of  C.  D.,  guardian 
of  the  person  and  estate  of  A.  B.,  a  minor,  with  said  estate,  from 
the  date  of  the  issue  of  letters  of  guardianship  to  ,  19 — : 

[Date]     Appraisement  of  personalty  of  said  estate  as  per 

files  in  the  case    $ 

Income  from  the  real  estate   [items] 

Income  from   personalty    [items] 

Sales    of   real    estate    per    order    of   court    [items 
and   description   of  property  sold] 

$ 

Credits. 

Debts   paid    [items] $ 

Paid    for    support    of    ward    as    per    or- 
der   of    court    [items] 

Taxes  and  repairs  [items] 

Fees   of  county  judge    [items] 

Sale    of    personalty    by    order    of    judge 

[items]    

Attorneys'   fees   and    costs   and    expenses 

[items]    

Property  on  hand    [items] 

Appraised  value   of  same 


Balance    due    estate $ 

State  of  Nebraska, 

County, — ss. 

C.  D.,  being  first  duly  sworn,  on  oath  says  that  the  foregoing  is 
a  true  statement  of  the  account  of  his  transactions  in  regard  to  said 

estate  for  the  year  ending ,  19 — ,  that  the  debtor  items  of  said 

account  include  all  the  property  of  every  kind  and  description  that 
has  come  into  his  possession  as  guardian  of  said  estate,  and  that  the 

(914) 


Chap.  39]  ACCOUNTING  OF  GUABDIANS.  §  554 

credit  items  are  a  proper  allowance  against  said  estate,  and  vouchers 
for  same  are  hereto  attached. 

(Signed)     C.   D. 

Subscribed   in    my   presence   and  sworn  to   before  me   this  

day  of ,  19—. 

(Signed)     J.  K., 
County  Judge. 

Form  No.  253. 
ORDER  ALLOWING  ANNUAL  ACCOUNT  OF  GUARDIAN. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  the  first  annual  account 

of  C.  D.,  guardian  of  said  estate,  came  before  this  court  for  ap- 
proval, and,  after  a  due  examination  thereof,  the  court  finds  that 
the  same  is  just  and  correct.  It  is  therefore  ordered  that  the  same 
be  approved.  It  is  further  ordered  that  the  said  C.  D.,  guardian, 
make  and  file  in  this  court  a  further  account  of  his  doings  within 
one  year  from  this  date. 

(Signed)     J.  K., 
County  Judge. 

§  554.    Discharge  of  guardian. 

The  coming  of  age  of  a  minor  operates  per  se  as  a 
discharge  of  the  guardian,  ending  his  rights  to  the 
further  management  of  the  estate.19  The  duty  of  mak- 
ing a  settlement  with  his  ward  and  delivering  the 
property  remaining.20  The  same  rules  would  follow 
the  marriage  of  a  female  ward  after  she  has  attained 
the  age  of  sixteen.21 

In  the  case  of  the  guardian  of  an  incompetent  per- 
son, the  guardianship  continues  until  he  is  discharged 
by  an  order  of  the  court  which  appointed  him,22  or  by 

19  Goble  v.  Simeral,  67  Neb.  276,  93  N.  W.  235. 

20  Stinson  v.  Leary,  69  Wis.  269,  34  N.  W.  63. 

21  Montoya  v.  Miller,  7  N.  M.  289,  34  Pac.  40;  Decker  v.  Fessler, 
146  Ind.  16,  44  N.  E.  657. 

22  Hovey  v.  Harmon,  49  Me.  269. 

(915) 


§  555  PKOBATE    AND    ADMINISTRATION.  [Chap.  39 

an  adjudication  of  a  court  of  competent  jurisdiction 
that  the  ward  is  of  sound  mind.23 

Application  for  that  purpose  may  be  made  by  the 
ward,  and  notice  given  to  the  heirs  presumptive  and 
next  of  kin  and  also  to  the  guardian.24  If  the  person 
is  discharged  on  a  writ  of  habeas  corpus  on  the  ground 
that  he  is  of  sound  mind,  his  guardian  can  be  dis- 
charged on  motion  supported  by  a  certified  copy  of  the 
writ.  In  the  case  of  parties  who  were  adjudged  in- 
competent, not  insane,  it  should  be  made  to  appear  that 
they  have  regained  their  health  and  are  capable  of 
managing  their  affairs  and  understanding  ordinary 
business  transactions.25 

The  death  of  a  ward  effects  a  discharge  of  the 
guardian,26  and  the  duty  of  accounting  for  the  estate 
devolves  upon  his  representatives.27 

§  555.    Settlement  out  of  court. 

The  liability  of  a  guardian  to  his  ward  may  be  settled 
between  the  parties  as  soon  as  the  guardian  is  dis- 
charged without  the  matter  being  formally  brought 
before  the  court  for  approval.  A  settlement  so  made 
must  be  a  full  and  complete  accounting  of  all  the  trans- 
actions of  the  guardian  with  the  estate,  accompanied 
by  payment  or  delivery  of  whatever  is  due  to  the  ward, 
and  be  evidenced  by  a  written  receipt.28  It  is  binding 

23  In  re  Scheuer,  31  Mont.  606,  79  Pac.  244. 

24  Storms  v.  Allegan  Circuit  Judge,  99  Mich.  144,  57  N.  W.  1074. 

25  Cochran  v.  Anderson,  104  Ind.  282,  3  N.  E.  934. 

26  Barrett  v.  Provincher,  39  Neb.  773,  58  N.  W.  292. 

27  Peck  v.  Braman,  2  Blackf.  (Ind.)   141. 

28  Johnson   v.   Johnson,   2   Hill    Eq.    (S.   C.)    277,   29   Am.    Dec.    72; 
Cooper  v.   Cooper,   9   N.  J.  Eq.    655. 

(916) 


Chap.  39]         ACCOUNTING  or  GUABDIAXS.  §  556 

on  both  parties  only  when  the  guardian  acts  in  good 
faith,29  fully  discloses  to  his  ward  all  the  circumstances 
and  facts  connected  with  his  management  of  the  es- 
tate, and  all  his  rights  therein,30  and  the  transaction  is 
entirely  free  from  fraud,  duress  or  undue  influence.31 

§  556.    Action  to  set  aside  settlement. 

A  settlement  made  by  a  guardian  and  ward  out  of 
court  may  be  set  aside  for  fraud,  duress,  undue  influ- 
ence or  concealment  of  material  facts,  by  action  in 
equity  in  the  district  court.32  It  is  substantially  an 
action  for  equitable  relief  on  the  ground  of  fraud,  and 
though  the  burden  of  proof  is  of  course  upon  the  plain- 
tiff, less  evidence  of  actual  fraud  is  required  than  in 
other  cases  for  equitable  relief  on  similar  grounds.33 

The  influence  growing  out  of  the  fiduciary  relation 
between  a  guardian  and  his  ward  is  not  presumed  by 
law  to  terminate  with  removal  of  disability,  especially 
in  the  case  of  minors,  and  hence  all  sales,  contracts  and 
agreements  made  by  the  former  guardian  and  ward 
are  looked  upon  by  the  courts  with  some  suspicion, 
and  if  for  an  inadequate  consideration,  or  slightly 
tinctured  with  misrepresentations  or  suppression  of 

29  Hooper   v.   Hooper,    26   Mich.   435;    Powell   v.    Powell,   52   Mich. 
432. 

30  Witt   v.   Day,   112   Iowa,   110,   83   N.   W.   797;   Hawkins'   Appeal, 
32  Pa.  263;  Lewis  v.  Browning,  111  Pa.  493;  Douglass  v.  Ferris,  138 
K  Y.  192,  33  X.  E.  1041. 

31  Motley   v.   Motley,   43   Ala.   455;    Hardin's   Admr.  v.   Taylor,   78 
Ky.   593. 

32  Butterick  v.   Bichardson,  39  Or.  246,  64  Pac.  390;   Van  Bees  v. 
Witzenberg,  112  Iowa,  30,  83  N.  W.  787;  and  eases  cited  under  §  555. 

33  Stark  v.  Gamble,  13  N.  H.  465;  Voltz  v.  Voltz,  74  Ala.  555;  Van 
Bees  v.  Witzenberg,  112  Iowa,  30,  83  N.  W.  787. 

(917) 


§  556  PROBATE    AND    ADMINISTRATION.  [Chap.  39 

truth,  will  be  set  aside.34  Where  different  conclusions 
may  be  drawn  from  the  facts  connected  with  the  settle- 
ment, that  will  be  adopted  which  is  in  favor  of  the 
former  ward.35  A  conveyance  of  real  estate  made  by 
a  party  to  his  former  guardian  soon  after  he  became  of 
age,  if  accompanied  by  very  slight  evidence  of  mis- 
representation, concealment  of  material  facts  or  actual 
fraud,  makes  out  a  prima  facie  case,  and  it  devolves 
on  the  former  guardian  to  prove  that  the  sale  was  just 
and  equitable,36  and  he  must  show  that  he  made  a  full 
disclosure  of  all  the  circumstances  and  conditions  of 
the  estate  and  that  the  ward  knew  that  such  settlement 
was  to  operate  as  a  release  of  the  guardian.37 

A  gift  from  a  ward  to  his  guardian  is  voidable  only, 
the  burden  of  proof  being  on  the  guardian  to  show  that 
it  was  made  freely  and  voluntarily,  and  with  a  full 
understanding  of  his  rights.38  It  is  not  necessary 
before  bringing  suit  that  he  tender  back  the  money  he 
received  on  the  settlement,  but  he  may  in  his  plead- 
ings or  at  the  trial  offer  to  return  what  was  paid  him.39 
In  case  of  the  death  of  the  guardian  after  settlement, 
the  action  may  be  brought  against  his  executor  or 
administrator  and  the  bondsmen  of  such  executor  or 
administrator  joined  as  parties.40 

34  Eberts  v.  Eberts,   55  Pa.  110;   Garvin's  Admr.  v.  Williams,  50 
Mo.  206;  Tucke  v.  Bucholz,  43  Iowa,  415. 

35  Van  Bees  v.  Witzenberg,  112  Iowa,  30,  83  N.  W.  787;  Kirby  v. 
Taylor,  6  Johns.  Ch.  (N.  Y.)  242;  Spalding  v.  Brent,  3  Md.  Ch.  411; 
Wainright  v.  Smith,  106  Ind.  239,  6  N.  E.  333. 

36  Berkmeyer  v.   Kellerman,   32   Ohio   St.   240;   Bond  V.  Lockwood, 
33   111.   212. 

37  Gregory  v.  Orr,  61  Miss.  307. 

38  Wade   v.   Pulsifer,   54   Vt.   45. 

89  Line  v.  Lawder,  122  Ind.  548,  23  N.  E.  758. 
40  Witt  v.  Day,  112  Iowa,  110,  83  N.  W.  797. 

(918) 


Cliap.  39]  ACCOUNTING  OF  GUARDIANS.  §  557 

The  decree,  if  in  favor  of  the  ward,  sets  aside  the 
settlement,  and  restores  the  guardian's  bond  as  a 
security  for  its  being  complied  with.  The  costs  of  the 
action,  however,  are  not  a  liability  for  which  the 
bondsmen  can  be  held.41 

§  557.    Action   by   ward   for  property  fraudulently 

transferred. 

Xo  fraudulent  transfer  or  dealing  of  the  guardian 
with  his  ward's  property  will  be  allowed  to  stand. 
The  ward  may  bring  an  action  on  the  bond  for  the 
value  of  the  property,  or  he  may  follow  the  same  and 
recover  it,  even  though  it  has  passed  into  the  hands 
of  a  third  party.42  He  cannot  pursue  both  remedies. 
If  he  has  repudiated  a  fraudulent  or  unauthorized 
act  of  his  guardian,  and  brought  an  action  on  the  bond, 
he  cannot  set  up  any  legal  or  equitable  claim  to  the 
property  into  which  the  assets  of  his  estate  have 
passed.43  If  unable  to  realize  the  amount  due  from  the 
bondsmen,  he  may  file  a  bill  in  equity  for  the  recovery 
of  such  property  as  he  can  trace.44  A  guardian  who 
has  purchased  realty  with  his  ward's  funds  holds  the 
same  as  trustee  of  the  ward,  and,  if  he  has  sold  or 
transferred  the  land  to  a  third  party  with  notice,  the 
ward  will  be  permitted  to  establish  a  resulting  trust  in 
the  land.45  If  the  guardian  took  the  title  as  trustee 

«  Douglass  v.  Ferris,  138    N.  Y.  192,  33  N.  E.  1041. 

42  Vason  v.  Bell,  53  Ga.  416. 

43  Kowley  v.  Towsley,  53  Mich.  329,  19  N.  W.  80;  Beam  r.  Frone- 
berger,  75  N.  C.  540. 

44  Branch  v.  Du  Bose,  55  Ga.  21;  Hill  v.  Mclntire,  39  N.  H.  410. 

45  Eobinson   v.   Pebworth,   71   Ala.   240;   Hamnett's   Appeal,   72   Pa. 
337;    Beyer's   Appeal,   11   Pa.   36;    Bowland   v.    Thompson,    73   N.   C. 

(919) 


§  557  PROBATE    AND    ADMINISTRATION.  [Chap.  39 

of  the  ward,  then  deeded  to  a  third  party,  or  if  the 
third  party  had  any  knowledge,  either  from  the  deeds 
or  otherwise,  where  the  purchase  money  came  from, 
a  resulting  trust  would  be  established.46  Any  trans- 
action of  the  guardian  which,  while  perhaps  not 
fraudulent,  is  not  authorized  by  the  court  or  law,  may 
be  ratified  or  disapproved  by  the  ward.47  He  cannot 
ratify  in  part  and  disapprove  in  part.  The  transac- 
tion is  an  entirety.48  Transactions  of  this  nature  are 
contracts  for  the  purchase  of  real  estate,  irregular  sales 
of  land,  a  loan  of  the  ward's  funds  to  a  firm  of  which 
the  guardian  is  a  member,  or  any  unauthorized  invest- 
ment by  the  guardian.  In  the  case  of  a  loan  to  a  firm 
of  which  the  guardian  is  a  member,  the  ward  may  elect 
to  consider  the  amount  as  a  loan,  or  hold  the  guardian 
for  the  amount  due  upon  his  bond.49 

A  formal  ratification  of  any  irregular  dealings  of  the 
guardian  with  his  ward's  estate  is  not  necessary.  If, 
after  becoming  of  age,  he  receives  and  retains  the  bene- 
fit of  such  transactions  with  a  full  knowledge  of  their 
irregularity  and  his  consequent  rights,  he  will  be 
presumed  by  the  law  to  have  ratified  them.50 

419;  Eobinson  v.  Kobinson,  22  Iowa,  427;  White  v.  Parker,  8  Barb. 
(N.  Y.)  48. 

46  Morrison  v.   Kinstra,   55  Miss.   71;   Taylor   v.   Brown,   55   Mich. 
482,  21  N.  W.  901. 

47  Tomlinson  v.  Simpson,  33  Minn.  443,  23  N.  W.  864;  Eckford  v. 
De  Kay,  8  Paige  (N.  Y.),  89. 

48  Singleton  v.  Love,  1  Head  (Tenn.),  357. 

49  Douglas  v.  Bennett,  51  Miss.  680;   Summers  v.  Howard,  33  Ark. 
490;  Morgan  v.  Johnson,  68  111.   190;   Shorter  v.  Frazer,  64  Ala.   74; 
Loyd  v.  Malone,  23  111.  43;  Bush  v.  Bush,  33  Kan.  556. 

so  Seward  v.  Didier,  16  Neb.  58,  20  N.  W.  12;  Caffey  v.  McMichael, 
64  N.  C.  507;  Cassedy  v.  Casey,  58  Iowa,  326,  12  N.  W.  286;  Teipel 
v.  Vanderweier,  36  Minn.  443,  37  N.  W.  934. 

(920) 


Chap.  39]          ACCOUNTING 'OF  GUARDIANS.  §558 

Where  the  settlement  was  made  in  the  county 
judge's  office  and  the  account  gone  over  by  the  ward, 
guardian  and  county  judge,  though  there  was  no  judi- 
cial record  of  its  approval,  and  a  receipt  filed,  the  ward 
is  estopped  from  attempting  to  recover  property  the 
proceeds  of  which  were  included  in  such  account.51 

§  558.    Final  accounting  in  county  court. 

The  county  court  has  original  jurisdiction  of  the 
accounting  between  a  guardian  and  his  former  ward,52 
unless  the  trust  has  terminated  by  a  settlement  between 
the  parties  out  of  court.53  When  a  settlement  is  not 
made  outside  of  court,  the  guardian  should  file  his 
account  as  soon  as  possible  after  the  disability  of  the 
ward  ceases  and  a  hearing  had  after  notice  to  the  ward, 
which  should  be  personally  served.  The  ward  may 
waive  service  and  enter  his  appearance.  A  hearing 
without  service  or  entry  of  appearance  is  of  no  more 
binding  effect  than  a  hearing  on  an  annual  account.54 

If  he  neglects  to  render  the  account,  the  ward  may 
file  his  petition  in  the  county  court  for  that  purpose.'55 
There  is  authority  to  the  effect  that  the  right  to  file 
such  petition  is  not  barred  by  the  statute  of  limita- 
tions.56 A  lapse  of  time  after  the  ward  becomes  of  age, 

51  Horcher  v.  McGuire,  85  Neb.  646,  124  N.  W.  Ill;  Kulp  v.  Heiman, 
90  Neb.  167,  133  N.  W.  205. 

52  Bisbee  v.  Gleason,  21  Neb.  534,  32  N.  W.  578;  Wilson  v.  Wilson. 
90  Neb.  353,  133  N.  W.  447. 

53  Butterick  v.  Richardson,  39  Or.  246,  66  Pac.  390. 

54  Jacobs   v.   Fouse,   23   Minn.   51;   Mead   v.   Bakewell,   8  Mo.   App. 
549;    Murphy   v.   Murphy,    2    Mo.    App.    549;    Roberts    v.    Schultz,    45 
Tex.  184. 

55  Bisbee  v.  Gleason,  21  Neb.  536,  32  N.  W.  578;  Ball  v.  Le  Clair. 
17  Neb.  39,  22  N.  \V.  118. 

6«  Gilbert  v.  Guptil,  34  111.  112. 

(921) 


§  558  PROBATE  AND  ADMINISTRATION.  [Chap.  39 

equal  to  the  statute,  raises  a  presumption  that  there  is 
nothing  due  the  ward.57  Except  in  the  case  of  fraud, 
it  should  be  filed  within  four  years.58 

On  the  filing  of  the  petition  a  citation  should  be 
issued  and  personally  served  on  the  guardian.  Under 
a  statute  similar  to  that  of  this  state,  it  is  held  that 
service  by  publication  on  a  guardian  who  had  become 
a  nonresident  gave  the  court  jurisdiction.59  After  the 
death  of  a  guardian  his  personal  representatives  may 
be  summoned  in  the  same  manner.60 

Form  No.  254. 

PETITION  TO  EEQUIRE  GUARDIAN  TO  ACCOUNT. 
[Title  of  Cause  and  Court.] 

Your  petitioner,  A.  B.,  respectfully  represents  unto  the  court  that 

on  the  day  of  ,  19 — ,  letters  of  guardianship  upon  his 

said  estate  were  issued  out  of  and  under  the  seal  of  said  court  to 
C.  D.;  that  your  petitioner  became  of  lawful  age  on  the  —  —  day  of 

,  19 — ,  and  on  the  day  of  ,  19 — ,  he  demanded  a 

settlement  of  the  said  matters  of  his  said  estate  with  said  C.  D., 
and  that  said  C.  D.  has  failed  and  refused  and  neglected  to  settle 
his  business  as  guardian  of  said  estate  with  your  petitioner;  that 
said  C.  D.  has  in  his  possession  a  large  amount  of  money,  notes, 
bonds,  rights,  and  effects  belonging  to  your  petitioner,  and  is  in- 
debted to  your  petitioner  in  an  amount  unknown  to  your  petitioner, 
but  which  is  not  less  than  the  sum  of  dollars. 

Your  petitioner  therefore  prays  that  a  citation  issue  out  of  and 
under  the  seal  of  said  court  to  the  said  C.  D.,  commanding  him  to 
appear  before  said  court  on  a  day  to  be  therein  specified,  and  then 
and  there  make  full  report  of  his  doings  as  such  guardian,  and  pay 

57  Maulf air's  Appeal,  110  Pa.  402,  2  Atl.  530;  Kimball  v.  Ives,  17 
Vt.   430. 

58  See  Jones  v.  Strickland,  61  Ga.  366;  Bane's  Appeal,  27  Pa.  492. 

59  Heisen  v.  Smith,  138  Cal.  216,  71  Pac.  180. 
so  Waterman  v.  Wright,  56  Vt.  164, 

(922) 


Chap.  39]  ACCOUNTING  OF  GUABDIANS.  §  559 

over   to  your  petitioner   the   money   which   may  be   due   him   on  said 
accounting,  according  to  law  and  the  terms  of  his  said  bond. 

Dated   this   day    of   ,    19 — . 

(Signed)     A.    B. 

[Add  verification.] 

Form  No.  255. 
CITATION  TO  GUARDIAN  TO  FILE  HIS  FINAL  ACCOUNT. 

State  of  Nebraska, 

County, — ss. 

To  C.  D.,  Guardian  of  A.  B.,  a  Minor: 

You  are  hereby  cited  to  appear  before  the  county  court  of  

county,  Nebraska,  at  the  county  court  room  in  said  county,  on  the 

day  of  i ,  19 — ,  and  then  and  there  make  and  file  a  re- 
port   of    doings    and    transactions    as    auch    guardian,   and,    upon   the 
hearing  on  said  account,  settle  the  affairs  of  such  guardianship,  and 
pay  to  the  said  A.  B.  the  money  which  may  be  found  due  him  on 
such   accounting,   as    required   by   law   and   the   terms   of   your   bond. 
Should   you  fail   or   neglect   to   comply  with   the   terms   of   this   cita- 
tion, the  amount  due  from  you  to  the  said  A.  B.  on  your  said  account 
will  be  determined  in  your  absence. 

Dated  this  —     -  day  of  ,  19 — . 

(Seal)  (Signed)     J.    K, 

County    Judge. 

§  559.    Hearing  on  guardian's  account. 

If  the  guardian  fails  to  appear  and  file  his  account, 
the  court  may  proceed  in  his  absence  to  take  testimony 
concerning  the  property,  examine  into  his  transactions 
with  the  funds  and  determine  the  amount  due  the 
ward;  and  a  decree  rendered  without  any  appearance 
on  his  behalf  is  binding  on  all  parties  interested.61 

The  account  may  be  a  continuation  of  the  last  annual 
account,  or  a  complete  statement  of  all  his  transac- 
tions with  the  property,  the  latter  being  the  better 
practice,  if  there  is  a  probability  of  objections  being 

«i  Bisbee  v.  Gleason,  21  Neb.  536,  32  N.  W.  578. 

(923) 


§  560  PROBATE  AND  ADMINISTRATION.  [Chap.  39 

filed.62  In  any  case  the  ward  may  object  to  any  items 
which  he  believes  are  not  a  legitimate  claim  against 
him  or  introduce  evidence  of  property  omitted.63 

It  should  include  all  transactions  up  to  the  date  when 
the  disability  ends.  If  there  are  several  wards,  sepa- 
rate accounts  should  be  filed  for  each.64 

Though  not  required  by  statute,  vouchers  for  all  ex- 
penditures should  be  filed.65  The  burden  of  proof  is 
on  the  guardian  to  show  that  payments  claimed  for  the 
benefit  of  the  ward  were  for  that  purpose,  and  that 
credits  claimed  for  debts  were  prima  facie  demands 
against  the  ward.66  Where  no  objections  are  filed,  the 
testimony  of  the  guardian  that  the  account  as  it  stands 
is  correct  is  sufficient. 

§  560.    Order  allowing  final  account  of  guardian. 

A  guardian's  final  account,  when  approved  by  the 
county  court,  is  conclusive  as  to  all  matters  lawfully 
embraced  therein.67  It  cannot  be  attacked  collat- 
erally.68 An  appeal  may  be  taken  to  the  district  court 
in  the  same  manner  as  in  probate  cases.  If  the  guard- 
ian appeal,  he  must  give  a  bond.69  If  the  guardian 

62  Ellis  v.  Soper,  111  Iowa,  631,  82  N.  W.  1041. 

63  Section  510,  supra. 

64  Pursley  v.  Hayes,  22  Iowa,   11;   Hescht  v.  Calvert,  32  W.  V.  215, 
9  S.  E.  87. 

65  Gregg  v.  Gregg,  18  N.  H.  190;  Newman  v.  Bead,  50  Ala.  297. 

66  Stewart  v.  McMurray,  82  Ala.  269,  3  South.  47. 

67  State   v.   Leslie,   83   Mo.   60;   McCleary  v.   Menke,    109   111.   294; 
Foust  v.  Chamblee's  Admr.,  51  Ala.  74;  Candy  v.  Hannamore,  76  Ind. 
125. 

68  Bisbee  v.  Gleason,  21  Neb.  534,  32  N.  W.  578;  Lynch  T.  Kotan, 
39  111.   14. 

69  Goble  v.  Simeral,  67  Neb.  276,  93  N.  W.  235. 

(924) 


Chap.  39]  ACCOUNTING    OF    GUARDIANS.  §  560 

filed  his  account  of  his  own  motion,  he  ought  to  receive 
credit  for  his  reasonable  costs  and  expenses,  including 
attorney  fees  in  defending  a  settlement  which  the  court 
approved.70  If  he  had  to  be  formally  cited  to  account, 
he  should  at  least  pay  the  costs  of  the  citation.71  The 
allowance  of  fees  of  his  attorney  in  connection  with  the 
accounting  is  largely  in  the  discretion  of  the  court.72 

The  decree  lacks  one  element  of  a  judgment;  an  exe 
cution  cannot  issue  thereon,  and  payment  may  be  made 
by  either  turning  over  the  assets  and  securities  or  in 
cash.73 

The  inherent  jurisdiction  of  the  county  court  over 
guardianship  matters  gives  it  power  to  set  aside  the 
decree  if  it  was  obtained  by  fraud  or  misrepresenta- 
tion in  the  same  manner  as  other  final  decrees  of  such 
court.74 

Form  No.  256. 

PETITION   BY    GUARDIAN    FOR    HIS    RELEASE    FROM 
LIABILITY. 

[Title   of  Cause  and  Court.] 
Your  petitioner,  C.  D.,  respectfully  represents  unto  the  court  that 

on   the   day   of  ,   19 — ,   letters   of   guardianship    of   the 

said  A.  B.,  then  a  minor,  issued  to  him  out  of  and  under  the  seal 
of  said  court;  that  he  thereupon  entered  upon  the  discharge  of  his 
duties,  and  has  completed  his  trust  as  such  guardian;  that  on  the 

day   of  ,   19 — ,   the   said   A.  B.   became   of  lawful   age; 

that   on  the  day  of  ,  19 — ,  he  made  a  full  settlement 

TO  Xagle  v.  Robbing,  9  Wyo.  11,  62  Pac.  154,  796;  Neilson  v.  Cook, 
40  Ala.  498. 

71  Pyatt  v.  Pyatt,  44  N.  J.  Eq.  391,  15  Atl.  421. 

'-'  Moore  v.  Shields,  69  N.  C.  50;  Kingsbury  v.  Powers,  131  HL 
182,  22  N.  E.  479. 

73  Manning  v.  Manning,  61  Ga.  137. 

74  Civ.  Code,  §§  648,  656;  Levi  v.  Longini,  82  Minn.  324,  86  N.  W. 
334;  Estate  of  Leavens,  65  Wis.  440,  27  N.  W.  324. 

(925) 


§  561  PROBATE   AND  ADMINISTRATION.          [Chap.  39 

with  the  said  A.  B.;  that  attached  hereto  and  made  a  part  hereof, 
and  marked  "Ex.  A,"  "Ex.  B,"  and  "Ex.  C,"  is  the  account  of  your 
petitioner  as  guardian,  the  receipt  of  the  said  A.  B.  for  the  amount 
found  due  him  on  such  account,  together  with  the  written  consent 
of  the  said  A.  B.  for  the  discharge  of  your  petitioner  as  guardian. 

Your  petitioner  therefore  prays  that  said  court  may  approve  the 
same,  release  petitioner  as  guardian,  and  the  sureties  upon  his  official 
bond  from  liability  in  relation  to  said  guardianship. 

Dated  this day  of ,  19 — . 

(Signed)     G.    D. 

[Add  verification.] 

Form  No.  257. 

ORDER     APPROVING     FINAL     ACCOUNT,     AND     RELEASING 

GUARDIAN. 

[Title  of  Cause  and  Court.] 

Now,  on  this  day  of  ,  19 — ,  this  cause  came  on  for 

hearing  on  the  final  account  of  C.  D.,  guardian  of  the  said  A.  B., 
and  the  said  A.  B.  being  present  in  court,  and  having  attained  his 
majority,  and  the  court  having  examined  said  account  and  all  the 
transactions  of  the  said  C.  D.  as  guardian  as  aforesaid,  finds  that 
said  account  is  just  and  correct,  and  that  there  is  due  the  said 

A.  B.  from  the  said  C.  D.  the  sum  of  dollars.     It  is  therefore 

ordered  that  the  said  C.  D.  pay  forthwith  to  the  said  A.  B.  the  said 

sum  of  dollars,  and,  upon  payment  of  the  same  and  filing  the 

receipt  therefor,  said  C.  D.,  guardian,  and  E.  F.  and  G.  H.,  the 
sureties  upon  his  official  bond,  be  discharged  and  released  from  all 
further  liability  or  responsibility  in  relation  to  said  guardianship. 

Said  C.  D.  having  filed  a  receipt  from  said  A.  B.,  for  the  sum  of 

dollars,  it   is  further   ordered   that   said   C.   D.,  together  with 

E.  F.  and  G.  H.,  the  sureties  upon  his  official  bond,  be  and  they 
hereby  are  released  from  all  further  responsibility  in  relation  to 
said  guardianship. 

(Signed)     J.    K., 
County  Judge. 

§  561.    Liability  of  sureties  on  guardian's  bond. 

The  sureties  upon  a  guardian's  bond  are  liable  for 
the  lawful  disbursement  or  delivery  of  all  the  assets  of 
(926) 


Chap.  39]  ACCOUNTING    OF    GUARDIANS.  §  561 

the  estate  as  determined  by  the  order  of  the  county 
court.75  The  liability  does  not  terminate  with  the 
ward  becoming  of  age  or  the  removal  of  disability,76 
but  continues  for  four  years  after  the  discharge  of  the 
guardian,77  provided  that  if  at  the  time  of  the  dis- 
charge the  party  entitled  to  bring  the  action  is  out  of 
the  state  or  under  disability  to  sue,  the  action  may  be 
commenced  within  five  years  after  the  return  of  such 
person  to  the  state,  or  after  such  disability  shall  be 
removed.78 

In  Oregon  the  limitation  is  three  years.79 

Sureties  upon  a  sale  bond  are  liable  for  a  loss  or  mis- 
appropriation of  the  proceeds  of  the  sale,  including  a 
loss  occurring  on  account  of  a  failure  to  comply  with 
the  orders  of  the  county  court  for  its  investment.8* 
Unless  such  proceeds  have  been  mingled  with  other 
assets  and  the  loss  occurred  in  connection  with  the  loss 
of  such  other  assets,  it  is  but  justice  to  the  first  bonds- 
men that  the  ward  should  look  to  the  sureties  on  the 
sale  bond  for  reimbursement.81 

A  guardian  of  two  or  more  wards  appointed  by  the 
same  letters  and  giving  but  one  bond,  together  with 

75  Bond   v.   Lockwood,    31    HI.    212;    Hunt    v.    State,   53   Ind.    321; 
State   v.   Brown,   73   N.   C.   81;    Taylor  v.  Hemingway,   181   Ky.   158; 
McDonald  v.  Meadows,  1  Met.  (Ky.)  507. 

76  In  re  Walling,  35  N.  J.  Eq.  105;  Higgins  v.  State,  87  Ind.  292. 

77  Civ.  Code,  §  13 ;  Goble  v.  Simeral,  67  Neb.  276,  93  N.  W.  235. 

78  Civ.    Code,   §  13. 

79  L.  O.  L.  §1334. 

so  Mattoon  v.  Cowing,  13  Gray  (Mass.),  387;  McKim  v.  Morse, 
130  Mass.  439. 

81  Henderson  v.  Coover,  4  Nev.  409;  Madison  County  v.  Johnston, 
51  Iowa,  152,  50  N.  W.  492;  Potter  v.  State,  23  Ind.  607. 

(927) 


§  562  PROBATE    AND    ADMINISTRATION;.  [Chap.  39 

his  sureties,  is  liable  to  a  ward  in  proportion  to  his 
interest  in  the  estate.82 

§  562.    Release  of  sureties. 

By  virtue  of  the  statute  of  limitations,  the  sureties 
upon  a  guardianship  bond  are  released  on  the  expira- 
tion of  four  years  from  the  date  of  his  discharge.83 
They  are  also  discharged  by  a  settlement  made  out  of 
court  by  a  ward  of  full  age  and  with  a  full  knowledge 
of  all  the  transactions  of  the  guardian  with  the  prop- 
erty of  the  estate.84  If  such  settlement  is  set  aside 
for  fraud,  misrepresentation  or  suppression  of  facts, 
the  effect  is  to  renew  the  bond  and  reinstate  the  liabil- 
ity of  the  sureties.85  The  payment  by  the  guardian  to 
the  ward  of  the  amount  found  due  him  on  final  account- 
ing in  the  county  court  releases  the  sureties,  but  setting 
aside  the  account  reinstates  the  bond.86 

The  death  of  a  surety  in  no  manner  affects  the  lia- 
bility of  his  cosureties,87  nor  does  the  giving  of  a 
cumulative  bond.88 

The  release  of  a  cosurety,  by  the  ward,  without  the 
knowledge  or  consent  of  the  other  sureties,89  or  an 
agreement  between  the  guardian  and  ward,  after  the 

82  Hooks  v.  Evans,  68  Iowa,  52,  25  N.  W.  925;  Pursley  v.  Hayes, 
22  Iowa,  11;  Ordinary  v.  Heishon,  42  N.  J.  L.,  15. 

83  Section  561,  supra. 

84  Seward  v.  Didier,  16  Neb.  64,  20  N.  W.  12. 

85  Ela   v.   Ela,   84   Me.   423,    24    Atl.   893;    Douglass    v.   Ferris,    138 
N.  Y.   192,  33  N.  E.   1041. 

86  Johnson's    Heirs   v.    Chandler's    Heirs,    15    B.    Mon.    (Ky.)    584; 
Aaron  v.  Mandel,  78  Ky.  427. 

87  Winslow  v.  People,  117  111.  152,  7  N.  E.  135. 

88  State  v.   Saunders,  60   Ind.   562;   Baum  v.  Lynn,   72   Miss.   932, 
18    South.   428. 

8»  Tyner  v.  Hamilton,  51  Ind.  259. 

(928) 


Chap.  39]  ACCOUNTING    OF    GUARDIANS.  §  563 

latter  becomes  of  full  age,  for  a  valuable  consideration, 
to  extend  the  time  for  payment  of  the  amount  found 
due  the  ward,90  discharges  the  bond. 

The  county  court  has  no  power  to  discharge  the  sure- 
ties except  on  approval  of  the  final  account  and  pay- 
ment and  deliver}7  of  the  money  and  property  therein 
directed  to  be  made  to  the  ward.  The  ward  should 
bring  suit  within  a  reasonable  time  after  the  allow- 
ance of  the  account,  and  if  he  neglects  to  do  so,  the 
sureties  on  the  bond  may  bring  an  action  to  compel 
him  to  commence  an  action  within  a  reasonable  time 
or  consent  to  their  discharge.91 

§  563.    Action  on  guardian's  bond. 

An  action  on  a  guardian's  bond  accrues  when  the 
amount  due  the  ward  or  the  predecessor  of  the  former 
guardian  has  been  ascertained  by  the  county  court  on 
the  final  accounting.92  The  statute  of  limitations  runs 
from  the  date  of  the  discharge  of  the  guardian,  and  not 
from  the  date  of  the  allowance  of  the  account.93 

It  is  not  necessary  to  obtain  leave  of  the  court  as  in 
the  case  of  executors'  or  administrators'  bonds.  The 
action  may  be  brought  as  soon  as  the  order  is  entered 
and  compliance  therewith  refused,  and  is  of  course 
brought  by  the  former  ward  in  his  own  name.94  In 
the  case  of  the  death  of  a  surety,  the  amount  due  from 

»o  People  v.   Seeley,   146  111.   189,  32   N.  E.  458. 

91  Vermilya  v.  Bunce,  61   Iowa,  605,   16  N.  W.   735. 

92  Ball  v.  Le  Clair,  17  Neb.  39,  22  N.  W.  118;  Bisbee  v.  Gleason, 
21   Neb.  534,  32  N.  W.  578. 

»3  Goble  v.  Simeral,  67  Neb.  276,  93  N.  W.  335. 
94  Bisbee  v.  Gleason,  21  Neb.  534,  32  N.  W.  578. 

59 — Pro.  Ad.  (929) 


§  563  PROBATE    AND   ADMINISTRATION.  [Chap.  39 

the  guardian  may  be  filed  as  an  absolute  or  contingent 
claim  against  his  estate.95 

Guardians'  bonds  are  construed  about  as  strictly  in 
favor  of  the  ward  and  against  the  sureties  as  they  well 
can  be.  Their  contract  is  to  make  good  to  the  minor 
whatever  may  be  lost  by  the  improper  or  unlawful  act 
of  the  guardian.  No  doctrine  of  estoppel  or  consent 
can  be  effective,  as  against  minors,  to  authorize  or  ex- 
cuse misconduct  by  their  guardians,  or  to  relieve  from 
the  liability  in  fact  assumed  by  those  who  have  guar- 
anteed against  such  misconduct.96  Of  technical  de- 
fenses to  the  action  there  are  scarcely  any.  The 
sureties  cannot  set  up  any  irregularities  in  the  appoint- 
ment of  the  guardian,  nor  can  they  deny  his  appoint- 
ment, where  the  bond  contains  proper  recitals,97  nor 
if  the  bond  is  in  proper  form,  can  they  in  any  way 
question  its  validity;98  nor  can  they  show  that  the  mis- 
appropriation of  the  ward's  funds  by  their  principal 
occurred  after,  instead  of  before,  he  became  of  age.  It 
is  immaterial  when  the  misappropriation  occurred.99 

A  settlement  made  by  a  guardian  in  the  county  court 
after  due  notice  is  final  and  binding  on  his  sureties  in 
an  action  on  the  bond,  and  his  absence  at  the  hearing 
is  no  defense.100  The  sureties  have  nothing  to  do  with 
the  decision  of  the  county  court  on  the  amount  due,  ex- 
cept to  pay  it  if  their  principal  does  not,  and  they  can- 

95  Brooks  v.  Rayner,  127  Mass.  268;  Cotton  v.  State,  64  Ind.  573. 

96  Hutson  v.  Jenson,  110  Wis.  26,  85  N.  W.  689. 

97  Shroyer   v.    Richmond,    16    Ohio    St.   455;    Hayden    v.    Smith,   49 
Conn.    83. 

98  Vincent  v.  Starks,  45  Wis.  458. 

99  Judge  of  Probate  v.  Cook,  57  N.  H.  450. 

100  Bisbee  v.  Gleason,  21  Neb.  534,  32  N.  W.  578;  Cross  v.  White, 
80  Minn.  413,  83  N.  W.  393;  Jacobson  v.  Anderson,  72  Minn.  426,  75 
N.   W.   607. 

(930) 


Chap.  39]  ACCOUNTING    OF    GUARDIANS.  §  563 

not  be  heard  on  the  hearing.101  They  cannot  set  up  as 
a  defense  that  the  guardian  paid  the  money  into  court. 
It  must  be  paid  to  the  ward.102  They  cannot  set  up 
that  their  signatures  were  obtained  by  fraud,  or  by  an 
agreement  to  secure  other  signatures,  or  by  any  other 
arrangement  or  agreement  of  which  the  court  or  the 
parties  to  be  protected  had  knowledge.103 

Form  No.  258. 

PETITION  ON  GUARDIAN'S  BOND. 
[Title  of  Cause  and  Court.] 

The  plaintiff  complains   of  the   defendants  for  that  on  the  

day   of  ,   19 — ,   defendant   C.   D.   was,   in   the   county   court   of 

—   county,   Nebraska,   appointed   guardian   of  the   estate   of  this 

plaintiff,  who  was  at  that  time  a  minor  of  the  age  of  years, 

residing  in  said  county  and  state. 

(2)  That  on  said  date,  said  C.  D.,  together  with  E.  F.  and  G.  H., 

executed  and  delivered  to  the  county  judge  of  said  county  of  

the    following    obligation    in    writing:       [Copy    bond    in    full.] 

(3)  That  said  instrument  was  duly  approved  by  the  county  judge 
of  said  county,  and  letters   of  guardianship  thereupon   issued  out   of 
and  under  the  seal  of  the  said  county  court  to  the  said  C.  D.,  and 
he    entered   upon   the    duties   of    said    guardianship,    and    collected    a 
large  amount   of  money  belonging  to  said  estate  and  said  minor,  to 

wit,   the   sum   of  dollars;    that    all    of   said   money   came   into 

the  hands  of  the  said  C.  D.,  guardian  as  aforesaid,  on  or  before  the 

day  of  ,  19 — ,  and  that  all  thereof  still  remains  in  the 

hands  of  the  said  C.  D.,  guardian  as  aforesaid. 

(4)  That    on    the    day    of    ,    19 — ,    the    plaintiff    de- 
manded   a    settlement    of   the    matters    of    his   said    estate    with    said 
C.  D.,  and  said  C.   D.  has  failed  and  refused  to  settle  said  business 

as  guardian;  that  on  the day  of ,  19 — ,  the  county  court 

of  said  county   duly  issued  its   citation   to  the  said  C.  D.  to  appear 

101  Braiden   v.   Mercer,   44   Ohio   St.   339,   7   N.   E.   155;    Badger   v. 
Daniel,   79   N.  C.   372. 

102  Jacobson  v.  Anderson,  72  Minn.  426,  75  N.  W.  607. 

103  Brown  v.  Probate  Judge,  42  Mich.  501,  4  N.  W.   195;  Vincent 
v.  Starks,  45  Wis.  458;  State  v.  Hewitt,  72  Mo.  603;  State  v.  Lewis, 
73  N.  C.  138. 

(931) 


§  563a  PROBATE    AND   ADMINISTRATION.          [Cliap.  39 

before  said  court  on  the  day  of  ,  19 — ,  and  settle  said 

business,   and   pay   over   the   said   money   to   plaintiff  as   required   by 

law  and  the  terms  of  said  bond,    which  citation  was,  on  the  

day  of  ,  19 — ,  duly  served  on  the  said  C.  D. 

(5)  That    on    the   day   of   ,    19 — ,    said    county   court 

made  an  order  finding  the  amount  due  the  plaintiff  from  said  C.  D. 

to  be  the   sum   of  dollars,   and   requiring  payment   thereof  to 

be  made  to  said   plaintiff,  in  the  words   and   figures  following    [copy 
order    settling    guardian's    account],    and    that    the    defendant    C.    D. 
has    neglected   and    refused,    and    still    neglects    and    refuses,    to    pay 
said  sum  to  this  plaintiff. 

(6)  That   plaintiff   is   of   lawful   age,   and   entitled   to   the   full   use 
and  control  of  his  estate. 

(7)  That  there  is  therefore  due  the  plaintiff  from  defendants,  C.  D., 

E.    F.,   and    G.   H.,   on    said    bond,    the    sum   of   dollars,    with 

interest   at   the   rate   of  seven   per   cent   per  annum   from   the  

day  of  ,  19—. 

Plaintiff    therefore    prays    for    judgment    against    the    defendants, 

C.  D.,  E.  F.,  and  G.  H.,  for  the  sum  of  dollars,  with  interest 

thereon   at   the   rate   of   seven   per   cent   per   annum   from   the  

day  of  ,  19 — ,  and  costs  of  this  suit. 

(Signed)      A.   B., 
By  W.  B.  C.,  His  Attorney. 
[Add  verification.] 

§  563a.    Appeals  in  guardianship  matters. 

All  final  orders  and  decrees  of  the  county  court  in 
guardianship  matters  may  be  taken  to  the  district 
court  by  appeal  or  error  in  the  same  way  as  in  probate 
matters.104  The  rule  permitting  the  guardian  to  ap- 
peal without  giving  a  bond  is  the  same  as  in  the  case 
of  an  executor  or  administrator.  If  the  appeal  is 
from  the  order  allowing  the  final  account,  or  any  other 
decree  adverse  to  him,  he  must  give  bonds  the  same 
as  any  other  appellant.105 

104  See  Chapter  XXXV. 

105  In  re  Williams'  Guardianship   (Neb.),  151   N.  W.   161;   Rhea  v. 
Brown,  4  Neb.  Unof.  461,  94  N.  W.  716;  In  re  O'Brien's  Estate,  80  Neb. 
125,  113  N.  W.  1001. 

(932) 


CHAPTER  XL. 

ADOPTION  OF  CHILDREN, 

§  564.  Adoption — Definition. 

565.  Who  may  Adopt  a  Child. 

566.  Consent  of  Parents  or  Guardians. 

567.  Proceedings  for  Adoption. 

568.  Notice  of  Hearing. 

569.  Hearing  on  the  Petition. 

570.  Decree    of   Adoption. 

§  564.    Adoption — Definition. 

Adoption  of  a  child  is  the  act  or  proceeding  by  which 
the  parent  or  parents  release  their  right  to  the  care 
and  custody  of  the  child  and  their  claim  to  his  earn- 
ings, and  such  child  is  taken  into  the  family  of  another 
and  has  conferred  on  him  the  rights  and  privileges  of 
an  heir.1  It  is  a  civil  law,  right  or  proceeding,  and 
therefore  dependent  entirely  on  the  statutes.2 

The  Nebraska  statutes  provide  for  a  full  adoption, 
by  which  the  child  takes  the  name  of  the  adopting 
parents,  becomes  subject  to  their  exclusive  custody  and 
control,  and  inherits  from  them  the  same  as  though 
born  to  them  in  lawful  wedlock;  and  a  limited  or  con-r 
ditional  adoption,  by  which  the  child  is  taken  into  the 
custody  and  control  of  the  adopting  parents  under  con- 
ditions or  limitations  either  concerning  their  rights 
over  him  or  his  rights  in  their  estate.3 

Under  the  Oregon  statutes,  a  full  adoption  is  the  only 
one  provided  for,  with  the  exception  that  the  decree 

1  Rapalje    &    Lawrence's    Law    Diet.;    Bouvier's    Law    Diet.;    Non- 
She-Po  v.  Wa-Win-Ta,  37  Or.  215,  62  Pac.   15. 

2  Non-She-Po  v.  Wa-Win-Ta,  37  Or.  215,  62  Pae.  15;  Teal  T.  Sevier, 
26   Tex.   516. 

3  Kev.  Stats.,  c.  18,  §§  80,  84,   [1619],   [1623]. 

(933) 


§  565  PROBATE   AND  ADMINISTRATION.          [Chap.  40 

may  provide   that  the   child   take   the  name   of  the 
adopting  parents.4 

The  court  is  without  power  to  enter  a  decree  for  the 
adoption  of  any  but  minor  children.5 

As  the  word  " minor"  is  not  used  in  L.  0.  L.,  sec- 
tion 7083,  it  would  seem  that  adults  might  be  adopted, 
according  to  the  construction  placed  on  like  statutes 
in  other  states.6 

§  565.    Who  may  adopt  a  child. 

Any  person  of  lawful  age  and  a  resident  of  this  state, 
though  unmarried,7  may  adopt  a  child,  provided,  how- 
ever, that  a  married  person  cannot  adopt  a  child  without 
the  consent  of  the  other  spouse,  unless  the  parties-have 
lawfully  separated  and  the  party  not  seeking  adoption 
is  not  capable  of  giving  consent.8 

In  Oregon  the  consent  of  the  husband  or  wife  to  the 
adoption  is  required  in  all  cases.9 

A  husband  and  wife  may  jointly  adopt  a  child  as 
their  own,10  or  either  parent  may  adopt  a  child  with 
the  consent  of  the  other.11  If  the  child  is  over  fourteen 
years  of  age,  his  consent  is  also  necessary.12 

4  L.   O.   L.,   §    7095. 

5  Rev.  Stats.,  c.  18,  §  76,  [1615]. 

6  Collamore  v.  Learned,  171  Mass.  99,  50  N.  K  518;  Markover  v. 
Krause,  132  Ind.  294,  31  N.  E.  1047;  In  re  Moran,  151  Mo.  555,  52 
S.    W.    377. 

7  Krug  v.  Davis,  87  Ind.  590. 

8  Rev.  Stats.,  c.  18,  §  78,  [1617]. 
»  L.  O.  L.,  §  7083. 

10  Clarkson  v.  Hatton,   143  Mo.  47,  44  S.  W.  761. 

11  In  re  Williamson,  102  Cal.  70,  36  Pac.  407. 

12  Rev.  Stats.,  c.  18,  §  79,  [1618];  L.  O.  L.,  §  7087. 

(934) 


Chap.  40]  ADOPTION    OF    CHILDREN.  §  566 

§  566.    Consent  of  parents  or  guardians. 

No  legitimate  child  can  be  adopted  without  the  con- 
sent of  its  parents  or  surviving  parent,  excepting  only 
in  cases  where  such  parent  or  parents  have  relin- 
quished the  custody  of  the  child  to  any  person,  associa- 
tion or  corporation,  been  deprived  of  such  custody  by 
a  court  of  competent  jurisdiction,  or  have  willfully 
abandoned  and  failed  to  contribute  to  the  support  of 
such  child  for  the  period  of  six  months.13  Consent  to 
the  adoption  of  an  illegitimate  minor  child  must  be 
given  by  the  mother,  if  living.14 

If  the  child  is  in  the  custody  of  a  legally  appointed 
guardian,  the  consent  of  such  guardian  is  necessary.15 
If  one  parent  has  had  the  exclusive  and  actual  custody 
and  control  of  the  minor  child  for  the  period  of  six 
months  last  preceding  the  application  for  adoption,  for 
the  support  of  which  the  other  parent  shall  have,  with- 
out just  cause  or  fault,  contributed  nothing  whatever 
during  such  period,  such  parent  having  such  custody 
or  control  may  consent  to  its  adoption.16 

Both  parents,  the  surviving  parent  if  one  be  dead, 
or  the  mother  of  an  illegitimate  child,  may  by  a  writ- 
ten instrument  executed  in  the  presence  of  at  least  one 
witness,  and  acknowledged  before  any  officer  author- 
ized by  law  to  acknowledge  deeds,  relinquish  the 
custody  and  control  of  such  child  to  any  person,  asso- 
ciation or  corporation,  and  therein  authorize  such  per- 
is Eev.  Stats.,  c.  18,  §  77,  [1616]. 

14  Rev.  Stats.,  c.  18,  §  77,  [1616]. 

15  Rev.  Stats.,  c.  18,  §  77,  [1616];  L.  O.  L.,  §  7084. 

16  Rev.  Stats.,  c.  18,  §  77,  [1616],  subd.  3. 

(935) 


§  567  PROBATE    AND   ADMINISTRATION.          [Chap.  40 

son,  association  or  corporation  to  procure  the  adoption 
of  such  child  by  some  suitable  person.17 

Under  the  Oregon  statute,  if  neither  of  the  parents 
are  living  and  the  child  has  no  guardian,  his  next  of 
kin  in  this  state  may  give  such  consent,  and  if  there 
is  no  next  of  kin,  the  court  may  appoint  some  suitable 
person  to  act  in  the  proceeding  as  next  friend,  and 
give  or  withhold  such  consent.18 

A  guardian  is  without  authority,  except  by  order 
of  the  court  appointing  him,  to  consent  to  the  adoption 
of  his  ward,  and  must  therefore  make  application  to 
the  court  and  procure  an  order  for  that  purpose.19 
Consent  of  the  parents  need  not  be  in  writing.  It  is 
sufficient  if  they  are  in  court  at  the  date  of  the  hearing 
on  the  petition  and  make  no  objection.20 

§  567.    Proceedings  for  adoption. 

The  county  court  of  the  county  in  which  the  party 
desiring  to  adopt  the  child  resides  has  exclusive 
original  jurisdiction  over  the  adoption  proceedings.21 
Adoption  is  not,  in  a  strict  sense,  a  judicial  proceed- 
ing, but  more  in  the  nature  of  a  contract  entered  into 
under  judicial  sanction  after  statutory  requirements 
have  been  complied  with.  The  court  must  obtain 
jurisdiction  over  the  child,  the  parents,  and  the  party 
or  parties  seeking  to  adopt  him,  and  has  no  power  to 
enter  a  decree  of  adoption  unless  it  appear  that  such 

17  Kev.  Stats.,  c.  18,  §  77,  [1616]. 

18  L.  O.  L.,  §  7084. 

l»  Rev.  Stats.,  c.  18,  §  77,  [1616],  subd.  7. 

20  Milligan  v.  McLaughlin,  94  Neb.  171,  142  N.  W.  675. 

21  Rev.  Stats.,  c.  18,  §  80,  [1619]  j  Milligan  v.  McLaughlin,  94  Neb. 
171,  142  N.  W.  675. 

(936) 


Chap.  40]  ADOPTION  OF  CHILDREN.  §  567 

consent  has  been  given,  or  that  the  facts  and  circum- 
stances clearly  place  the  proceeding  among  those  ex- 
ceptions in  which  the  consent  of  the  parents  to  the 
adoption  of  the  child  by  the  particular  parties  is  not 
necessary.22 

The  proceeding  is  commenced  by  the  filing  of  a  peti- 
tion under  oath  by  the  parties  desiring  to  adopt  the 
child,  stating  that  they  freely  and  voluntarily  adopt 
said  minor  child,  and  if  the  adoption  is  a  limited  one, 
the  conditions  thereof  should  also  be  set  out.23  The 
consent  of  the  parent  or  parents,  or  the  guardian  or 
person,  association  or  corporation  having  custody  of 
the  child,  and  relinquishment  of  his  control  to  the  end 
that  he  may  be  adopted  by  the  petitioners,  should  be 
filed  with  the  petition,  and  must  be  filed  before  the 
decree  is  entered.24  A  guardian  must  obtain  an  order 
from  the  court  under  whose  seal  his  letters  issued  em- 
powering him  to  give  such  consent.25 

Under  the  Oregon  statutes,  if  either  parent  is  im- 
prisoned in  the  state's  prison,  under  a  sentence  of  not 
less  than  three  years,  or  has  willfully  deserted  and 
neglected  to  provide  proper  care  and  maintenance  for 
the  child  for  one  year  next  preceding  the  time  of  fil- 
ing the  petition,  the  court  shall  proceed  as  if  such 
parent  were  dead,  and  in  its  discretion  may  appoint 
some  suitable  person  to  act  in  the  proceedings  as  next 
friend  of  the  child  and  give  or  withhold  consent  to  his 
adoption.26 

22  Tiffany  v.  Wright,  79  Neb.  10,  112  N.  W.  331;  Ferguson  v.  Jones, 
17  Or.  204,  20  Pac.  842. 

23  Eev.  Stats.,  c.  18,  §  80,  [1619];  L.  O.  L.,  §  7083. 

24  Rev.  Stats.,  c.  18,  §  80,  [1620]. 

25  Rev.  Stats.,  c.  18,  §  79,  [1619],  subd.  7;  L.  O.  L.,  §  7084. 
2«  L.  O.  L.,  §  7085. 

(937) 


§  567  PROBATE    AND   ADMINISTRATION.          [Chap.  40 

Form  No.  259. 

RELINQUISHMENT    BY    PARENTS    AND    CONSENT    TO    ADOP- 
TION. 

Whereas,  we,  A.  B.  and  C.  B.,  husband  and  wife,  of  the  county  of 
and  state  of  ,  are  the   parents  of  E.  B.,  a  minor  male 


child,  who  was  born   at  ,  in   the   county  of  ,   and   state 

of  ,  on  the  day  of  ,  19 — ,  and  said  child  now  is 

and  always  has  been  in  our  lawful  custody  and  control;  and 

Whereas,  G.  H.  and  L.  H.,  his  wife,  of  the  city  of  ,  county 

of  ,  and  state   of  Nebraska,   desire  to  adopt  said  child   [if  on 

certain  terms  or  conditions,  state  same  in  full],  and  are  suitable 
and  competent  persons  to  adopt  said  E.  B.,  and  it  is  for  the  best 
interests  of  said  E.  B.  that  said  adoption  be  made: 

Now,  therefore,  we,  said  A.  B.  and  said  C.  B.,  his  wife,  do  hereby 
voluntarily  relinquish  all  our  right  to  the  custody  and  control  over 
said  minor  child  E.  B.,  and  all  claim  and  interest  in  and  to  the 
wages  of  said  minor  child,  to  the  end  that  said  child  shall  be  adopted 
by  said  G.  H.  and  L.  H.  [if  on  terms  and  conditions  state  same  in 
full],  and  we  do  hereby  freely  consent  to  such  adoption. 

In  testimony  whereof  we  have  hereunto  set  our  hands  this  

day  of  ,  19—. 

(Signed)     A.  B. 
C.  B. 

Witness: 

(Signed)     L.  M. 

State  of  Nebraska, 

County, — ss. 

On  this  day  of  ,  19 — ,  before   me,  the  undersigned, 

a  notary  public  duly  commissioned  in  and  for  said  county,  per- 
sonally came  A.  B.  and  C.  B.,  to  me  known  to  be  the  identical  per- 
sons described  in  and  who  executed  the  foregoing  relinquishment, 
and  acknowledged  the  same  to  be  their  voluntarily  act  and  deed. 

Witness  my  hand  and  official  seal  this  day  of  ,  19 — . 

(Seal)  (Signed)     C.  F.  D., 

Notary  Public. 

(938) 


Chap.  40]  ADOPTION    OF    CHELDKEN.  §  567 

Form  No.   260. 

RELINQUISHMENT    BY   ONE   PARENT   AND   CONSENT    TO 
ADOPTION. 

Whereas,  A.  B.,  of  the  county  of  ,  and  state  of  ,  in 

the  mother  of  E.  B.,  a  male  child,  who  was  born  at  ,  in  the 

county  of  ,  and  state  of  ,  on  the  day  of  , 

19—;  and 

"Whereas,  on  the  day  of  ,  19 — ,  in  a  certain  action 

pending  in  the  district  court  of  . —  county,  Nebraska,  wherein 

said  A.  B.  was  plaintiff  and  C.  B.,  the  husband  of  said  A.  B.,  and 
the  father  of  said  child,  was  defendant,  a  decree  of  said  court  was 
made  and  entered  granting  said  A.  B.  a  divorce  from  said  C.  B.,  and 
also  awarding  her,  said  A.  B.,  the  custody  and  control  of  said  E.  B., 
the  issue  of  said  marriage;  [that  said  A.  B.  has  had  the  actual 
and  exclusive  custody  and  control  of  said  minor  child  for  the  six 
months  last  preceding  the  date  of  this  relinquishment,  and  that 
during  said  period  of  six  months  said  C.  B.  has  willfully  neglected  to 
provide  for  his  family  and  has  contributed  nothing  toward  the  support 
of  said  child] ;  [C.  B.,  the  husband  of  said  A.  B.,  and  the  father  of 
said  child,  departed  this  life  on  the day  of  ,  19 — ]. 

[Balance  follow  Form  No.  259,  page  938.] 

Form  No.  261. 

RELINQUISHMENT     BY     CORPORATION     AND     CONSENT     TO 

ADOPTION. 

Whereas,  on  the  day  of  ,  19 — ,  A.  B.  and  C.  B.,  his 

wife,  of  the  county  of  and  state  of  ,  parents  of  E.  B., 

a  minor  male  child  then  of  the  age  of  ,  executed  and  delivered 

in  the  manner  provided  by  law,  to  the  L.  M.  Co.,  a  corporation 
organized  and  existing  under  the  laws  of  the  state  of  Nebraska, 
having  power  under  its  articles  of  incorporation  to  have  the  custody 
and  control  of  minor  children,  with  the  power  to  relinquish  its  right 
to  such  custody  and  control  to  the  end  that  such  minor  children  may 
be  adopted  by  competent  and  suitable  persons,  their  certain  instru- 
ment in  writing  hereto  attached,  made  a  part  hereof  and  marked 
"Ex.  A,"  thereby  relinquishing  said  child  to  said  corporation  and 
authorizing  said  corporation  to  procure  the  adoption  of  said  minor 
child  by  some  suitable  person,  and  that  said  minor  child,  E.  B., 
ie  now  in  the  custody  and  control  of  said  corporation,  and  said 

(939) 


§  567  PROBATE   AND   ADMINISTRATION.          [Chap.  40 

corporation  is  entitled  to  the  disposition  of  the  person  of  said  child; 
and 

Whereas,  G.  H.  and  L.  H.,  his  wife,  residing  at ,  in  the  county 

of  and  state  of  Nebraska,  desire  to  adopt  said  child   [if  upon 

conditions,  state  same  in  full];  that  said  G.  H.  and  L.  H.  are  suit- 
able and  proper  persons  to  adopt  said  E.  B.,  and  it  is  for  the  best 
interests  of  said  E.  B.  that  said  adoption  should  be  made: 

Now,  therefore,  the  said  L.  M.  Co.  hereby  relinquishes  all  its 
right  to  the  custody  and  control  over  said  minor  child,  E.  B.,  to  the 
end  that  said  child  shall  be  fully  adopted  by  said  G.  H.  and  L.  H., 
his  wife  [upon  the  terms  and  conditions  above  set  forth],  and  said 
L.  M.  Co.  hereby  fully  consents  to  such  adoption. 

In  testimony  whereof  the  said  L.  M.  Co.  has  caused  this  instru- 
ment to  be  executed  by  its  president  and  secretary  this  day 

of   -    ,    19—. 

(Signed)     L.   M.    Co., 
By  H.  F.  C.,  President, 
D.  C.  P.,  Secretary. 

Witness: 

(Signed)     E.   S. 

State  of  Nebraska, 
County, — ss. 

On  this  day  of  ,  19 — ,  before  me,  the  undersigned,  a 

notary  public  duly  commissioned  in  and  for  said  county,  personally 
came  H.  F.  C.  and  D.  C.  P.,  president  and  secretary,  respectively, 
of  the  L.  M.  Co.,  and  acknowledged  their  execution  of  said  instru- 
ment as  their  voluntary  act  and  deed  for  and  in  behalf  of  said  com- 
pany. 

Witness  my  hand  and  official  seal  this  day  of  ,  19 — . 

(Seal)  (Signed)     C.    F.    D., 

Notary  Public. 

Form  No.  262. 
RELINQUISHMENT  OF  CUSTODY  OF  CHILD   BY  PAEENT. 

Know   all   men  by   these   presents,   that  I,  C.   B.,  mother   of   E.   B., 

an   illegitimate   minor   child   of   the   age   of  years,   and   which 

said  child  was  born  at  ,  in  the  county  of  and  state  of 

,    on    the   day   of   ,    19 — ,   do    hereby    voluntarily 

relinquish  all  my  right  to  the  custody  of  and  power  and  control 
over  my  said  minor  child  to  the  L.  M.  Co.,  a  corporation,  and  I  do 

(940) 


Chap.  40]  ADOPTION    OF    CHILDREN.  §  567 

hereby  authorize  and  empower  said  L.  M.  Co.  to  procure  the  adop- 
tion of  said  minor  child,  E.  B.,  by  some  suitable  person. 

Dated  this  day  of  ,   19 — . 

(Signed)     C.  B. 
Witness: 

G.  H. 

[Add  acknowledgment,  close  of  Form  No.  259.] 

Form  No.  263. 

PETITION    BY    CORPORATION    GUARDIAN   FOR    CONSENT   TO 

ADOPTION. 

In  the  County  Court  of County,  Nebraska. 

In  the  Matter  of  the  Adoption  of  E.  B.,  a  Minor  Child. 

Comes  now  the  L.  M.  Co.,  and  respectfully  represents  unto,  the 
court  that  it  is  a  corporation  organized  and  existing  under  and  by 

virtue  of  the  laws  of  the  state  of  Nebraska;  that  on  the  day 

of  ,  19 — ,  letters  of  guardianship  out  of  and  under  the  seal  of 

the  county  court  of  said  county  were  issued  to  said  L.  M.  Co.,  ap- 
pointing it  guardian  of  the  person  and  property  of  one  E.  B.,  a 

minor  child  of  the  age  of  years,  on  account  of  the  cruelty, 

neglect,  and  unsuitableness  of  the  parents  of  said  minor  child,  and 
that  said  L.  M.  Co.  now  has  the  lawful  custody  and  control  of  said 
child,  and  is  entitled  to  the  disposition  of  the  person  of  said  child, 
with  the  consent  and  approval  of  the  said  court  from  which  said 
letters  of  guardianship  issued. 

That  G.  H.  and  L.  H.,  of  the  county  of and  state  of  Ne- 
braska, desire  to  adopt  said  child:  that  said  G.  H.  and  L.  H.,  his 
wife,  are  suitable  and  proper  persons  to  adopt  said  E.  B.,  and  that 
it  is  for  the  best  interests  of  said  E.  B.  that  said  adoption  should 
be  made. 

Said  L.  M.  Co.  therefore  prays  that  said  county  court  may  con- 
sent to  the  adoption  of  said  E.  B.,  a  minor  child,  by  said  G.  H.  and 
L.  H.,  his  wife,  and  to  relinquish  all  right  to  the  custody  and  con- 
trol of  said  minor  child. 

Dated    this   -         -   day    of   ,    19—. 

[Add  verification.] 

(941) 


§  567  PROBATE   AND   ADMINISTRATION.          [Chap.  40 

Form   No.   264. 
OEDER  AUTHORIZING  GUARDIAN  TO  CONSENT  TO  ADOPTION. 

In  the  County  Court  of  County,  Nebraska. 

In  the  Matter  of  the   Adoption   of  E.  B.,  a  Minor   Child. 

On  reading  and  filing  the  petition  of  the  L.  M.  Co.,  a  corporation, 
praying  for  permission  to  authorize  said  L.  M.  Co.  to  consent  to 
the  adoption  of  E.  B.,  a  minor  ward  of  said  L.  M.  Co.,  by  G.  H, 
and  L.  H.,  his  wife,  of  said  county,  it  is  ordered  that  said  L.  M.  Co. 
be  authorized  and  empowered  to  relinquish  to  said  G.  H.  and  L.  H. 
his  wife,  all  its  rights  to  the  custody  and  control  over  said  minor 
child,  E.  B.,  and  to  consent  to  the  adoption  of  said  minor  child  by 
said  G.  H.  and  L.  H.,  his  wife. 

Dated  this  day  of  -      — ,  19—. 

(Signed)     J.    K., 
County  Judge. 

Form   No.    265. 

CONSENT  OF  CHILD  OVER  FOURTEEN  YEARS  OF  AGE  TO 

ADOPTION. 

I,   E.  B.,  a  minor  of  the  age   of  years,   do   hereby   consent 

that  a  decree   of  the   county  court   of  county,  Nebraska,   be 

made  for  my  adoption  by  G.  H.  and  L.  H.,  his   wife,  of  ,  in 

eaid   county. 

Dated  this  day  of  ,  19 — . 

(Signed)     E.  B. 
Witness: 

(Signed)     L.   M. 

Form  No.  266. 
PETITION    FOR   ADOPTION   OF   CHILD. 

In   the    County    Court    of   County,    Nebraska. 

In  the  Matter  of  the  Adoption  of  E.  B.,  a  Minor  Child. 

Come  now  G.  H.   and  L.  H.,  his  wife,  and  respectfully  show  unto 

the   court   that   they   are   residents   of   said  county;    that   one 

E.  B.  is  a  minor  child,  who  was  born  to  A.  B.  and  E.  B.,  his  wife,  at 

,  in  the  county  of  ,  and  state  of  ,  on  the  - 

day  of ,  19 — ;  that  the  said  parents  of  said  E.  B.  have  executed 

their  written  relinquishment  and  consent  to  the  adoption  of  said 
child  by  your  said  petitioners,  which  said  instrument  is  filed  here- 
with. 

(942) 


Chap.  40]  ADOPTION    OF    CHILDREN.  §  568 

Your  petitioners  declare  that  they  and  each  of  them  do  freely  and 
voluntarily  adopt  said  E.  B.  as  their  own  child  [upon  terms  and 

conditions,  following  ] ;   that  it   is   their  wish   to  bestow   upon 

said  minor  child  equal  rights,  privileges  and  immunities  of  children 
born  to  them  in  lawful  wedlock,  and  that  the  name  of  said  child 
be  changed  to  E.  H. 

Wherefore,  your  petitioners  pray  that  said  court  will  fix  a  time 
for  the  hearing  on  this  petition,  that  notice  thereof  be  given  to  all 
persons  interested  as  provided  by  law,  that  on  said  hearing  a  decree 
of  adoption  be  made  and  entered  by  said  court  bestowing  on  said 
child  all  the  rights,  privileges  and  immunities  of  children  born  to 
them  in  lawful  wedlock  [if  conditional .  or  limited  adoption,  state 
conditions],  and  that  the  name  of  said  child  be  changed  to  E.  H. 

(Signed)     G.  H. 
L.  H. 

§  563.    Notice  of  hearing. 

On  the  filing  of  the  petition  it  is  the  duty  of  the 
court  to  fix  a  date  for  the  hearing  thereon,  which  must 
be  not  less  than  fourteen  days  subsequent  thereto. 
Personal  service  of  the  notice  on  the  parents,  if  resi- 
dents of  the  state,  must  be  ordered  by  the  court;  if  they 
are  nonresidents,  service  by  publication  for  four  weeks 
in  some  newspaper  must  be  had,  the  publication  to  be 
completed  ten  days  before  the  date  of  hearing.27 

Under  the  Oregon  practice,  if  a  parent  does  not  con- 
sent to  an  adoption,  a  copy  of  the  petition  and  order 

27  Rev.  Stats,  c.  18,  §  83,  [1621].  The  word  "may"  is  used  in  the 
statute  in  place  of  "must,"  but  it  was  plainly  the  intent  of  the  legis- 
lature that  some  notice  be  given  the  absent  and  nonresident  parent. 
The  well-recognized  principle  of  statutory  construction  by  which  the 
word  "may"  is  construed  as  "must,"  when  necessary  to  carry  out  the 
legislative  intent,  or  when  the  statute  requires  the  performance  of 
an  act  for  the  sake  of  justice  or  the  public  good,  and  in  which  the 
rights  of  private  parties  are  involved,  has  been  followed  in  this  state 
from  an  early  day,  and  clearly  applies  to  the  foregoing  section.  See 
Kelley  v.  Morse,  4  Neb.  224;  People  v.  Buffalo  County  Commrs.,  4 
Neb.  150. 

(943) 


§  569  PROBATE    AND   ADMINISTRATION.          [Chap.  40 

thereon  must  be  served  on  him  personally  if  within  the 
state,  and  if  not,  be  published  once  each  week  for  three 
successive  weeks  in  some  newspaper  printed  in  the 
county,  the  last  publication  to  be  at  least  four  weeks 
from  the  date  of  hearing.  Like  notice  is  required 
when  the  child  has  no  parent  living  and  'no  guardian 
or  next  of  kin  in  this  state,  and  the  court  may  order 
such  further  notice  as  it  deems  necessary  or  proper.28 

Form  No.  267. 
NOTICE  OF  HEAE1NG  ON  PETITION  FOR  ADOPTION. 

In    the    County    Court    of   County,    Nebraska. 

In  the  Matter  of  the  Adoption  of  E.  B.,  a  Minor  Child. 

All  persons  interested  will  take  notice  that  on  the  day  of 

,   19 — ,   G.  H.  and  L.  H.,  his  wife,  filed  their  petition  in  said 


court  praying  for  a  decree  for  the  adoption  of  said  E.  B.,  and  that 
said   petition  will   be   heard    by   said   court   in   the  county   court   room 

in   said   county   on   the   day   of  ,   19 — ,   at   the   hour   of 

9  A.  M.,  at  which   time  and  place   objections  to  the  prayer  of  said 
petition  will   be   considered. 

Dated  this  day  of  ,  19 — . 

(Seal)  (Signed)     J.    K., 

County  Judge. 

§  569.    Hearing  on  the  petition. 

All  the  jurisdictional  requirements  of  the  statute, 
which  are  consent  of  the  parents,  with  the  exception 
of  those  cases  where,  by  reason  of  abandonment,  re- 
linquishment  or  removal  from  the  control  of  the  parents 
or  other  statutory  cause,  such  consent  is  not  necessary, 
and  issue  and  service  of  notice,  must  be  fully  complied 
with.  The  parents  by  appearing  at  the  hearing  and 
making  no  objections  give  their  consent  the  same  as 
though  by  a  formal  instrument.29  Where  abandon- 
as  L.  O.  L.,  §  7086. 
29  Milligan  v.  McLaughlin,  94  Neb.  171,  142  N.  W.  675. 

(944) 


Chap.  40]  ADOPTION    OF    CHILDREN.  §  569 

ment  by  one  parent  is  alleged,  it  being  at  common  law 
a  relinquishment  of  custody,30  the  same  must  be  estab- 
lished by  competent  proof.31  When  jurisdiction  has 
been  obtained,  a  substantial  compliance  with  other  re- 
quirements is  all  that  is  necessary.32 

The  child  and  the  person  desiring  to  adopt  him  must 
be  personally  present  in  court,  and  if  the  court  finds 
that  it  is  for  the  best  interest  of  the  child,  a  decree  of 
adoption  shall  be  entered  in  accordance  with  the  terms 
and  conditions  of  the  consent  and  petition.33 

Under  the  Oregon  practice,  if  the  court  is  satisfied 
from  the  petition  and  consent  of  the  identity  and  rela- 
tions of  the  persons,  and  that  the  petitioner  is  of  suffi- 
cient ability  to  bring  up  the  child,  and  furnish  suitable 
support  and  education,  having  reference  to  the  degree 
and  condition  of  the  parents,  and  that  it  is  fit  and 
proper  that  such  adoption  shall  take  effect,  a  decree 
shall  be  made  setting  forth  the  facts,  and  ordering  that 
from  the  date  of  the  decree  the  child  shall,  to  all  legal 
intents  and  purposes,  be  the  child  of  the  petitioner.34 

If  the  decree  changes  the  name  of  the  child,  it  is  the 
duty  of  the  county  judge  to  include  the  same  in  his 
annual  report  to  the  secretary  of  state  of  all  changes  of 
names  by  the  act  of  his  court.35 

30  Stansberry  v.  Berton,  7  Watts  &  S.  (Pa.)  364. 

31  Ferguson  v.  Jones,  17  Or.  204,  20  Pac.  842;  Winans  v.  Lupie,  47 
X.  J.  Eq.  302,  20  Atl.  969. 

32  In  re   Edds,   137  Mass.   346;   Nugent  v.  Powell,  4  Wyo.   173,  33 
Pac.  23;  Ferguson  v.  Herr,  64  Neb.  649,  94  N.  W.  542. 

33  Rev.   Stats,   c.   18,   §82,    [1621]. 

34  L.  O.  L.,  §  7068. 

35  L.  O.  L.,  §  7096. 

60— Pro.  Ad.  (945) 


§  570  PROBATE   AND  ADMINISTRATION.          [Chap.  40 

Form  No.  268. 
DECREE  OP  ADOPTION. 

In    the    County    Court    of   County,    Nebraska. 

In  the  Matter  of  the  Adoption  of  E.  B.,  a  Minor  Child. 

Now,  on  this  day  of  ,   19 — ,  this  cause  came   on  for 

hearing  on  the  petition  of  G.  H.  and  L.  H.,  his  wife,  for  the  adop- 
tion of  E.  B.,  a  minor  male  child  of  the  age  of  -  -  years;  and 

on  the  relinquishment  and   consent  to   such  adoption  by  ,  the 

of  said   child.     Said   petitioners   and  said  minor  child,   E.   B., 

were  present  in  court  in  person. 

Upon  an  examination  of  the  premises  and  the  evidence,  the  court 
finds  that  all  persons  interested  in  said  adoption  have  been  duly 
notified  of  the  time  and  place  for  the  hearing  of  this  petition,  as 
required  by  law  and  the  order  of  this  court,  and  are  now  before  the 
court;  that  the  facts  set  forth  in  said  petition  are  true;  that  G.  H. 
and  L.  H.,  his  wife,  who  have  petitioned  this  court  to  adopt  said 
child,  are  proper  and  suitable  persons  to  adopt  said  child,  and  that 
it  is  for  the  best  interests  of  said  child  that  it  should  be  so  adopted. 

It  is  therefore  considered,  ordered,  and  adjugded  by  the  court 
that  the  right  to  the  custody  of  and  power  and  control  over  said 
minor  child,  and  all  claims  and  interest  in  and  to  the  wages  of  said 

minor  child  by  the  said  > — ,  shall  and  do  cease  and  determine  from 

and  after  this  date,  and  that  the  said  E.  B.  be  and  he  hereby  is 
declared  the  adopted  child  of  said  G.  H.  and  L.  H.,  upon  the  terms 
and  conditions  following:  [State  terms  and  conditions  of  adoption, 
if  any.] 

That  the  relations  of  parent  and  child  be  and  hereby  are  estab- 
lished between  said  E.  B.  and  said  G.  H.  and  L.  H.;  that  said  E.  B. 
be  and  now  henceforth  is  subject  to  the  exclusive  custody  and  con- 
trol of  said  G.  H.  and  L.  H.,  and  shall  take  and  henceforth  bear 
the  surname  of  said  H.,  and  shall  possess  and  enjoy  all  the  rights, 
privileges,  and  immunities  of  children  born  in  lawful  wedlock  [sub- 
ject to  the  conditions  above  set  forth]. 

(Signed)     J.    K., 
County  Judge. 

§  570.    Decree  of  adoption. 

A  decree  of  adoption  bestows  upon  the  child  the 
rights,  privileges,  duties  and  immunities  as  of  a  child 
born  in  lawful  wedlock  of  the  adopting  party,  except- 
(946) 


Chap.  40]  ADOPTION  OF  CHILDREN.  §  570 

ing  as  otherwise  in  the  decree  provided,36  and  relieves 
his  natural  parents  from  all  obligations  for  his  care 
and  support.37  The  child  is  not  entitled  to  inherit 
through  the  adopting  parents  by  right  of  representa- 
tion, nor  can  he  take  property  limited  to  the  heir  or 
heirs  of  the  body  or  bodies  of  such  parents.38 

The  decree  is  a  final  one,  and  subject  to  appeal  by 
any  person  against  whom  the  same  may  be  made  or 
who  is  affected  thereby.39 

Under  the  Oregon  practice,  a  parent  who  has  not  had 
notice  of  the  proceeding  may  at  any  time  within  one 
year  after  actual  notice  apply  to  the  circuit  court  to 
reverse  the  decree,  and  such  court  has  power,  after  due 
notice,  to  reverse  the  same  if  it  appears  that  any  of 
the  material  allegations  are  untrue.40  An  appeal  by 
the  child  may  be  taken  by  his  next  friend,  and  no  bond 
is  necessary.41 

It  stands  on  a  somewhat  different  footing  from  other 
county  court  decrees.  The  parties  to  it  cannot  by  their 
own  acts  nullify  or  revoke  it,42  and  there  is  authority 
to  the  effect  that  it  is  not  open  to  collateral  attack,  and 
is  conclusive  on  the  parties  to  the  proceeding  and  their 
privies,43  but  where  it  partakes  more  of  the  nature  of 
a  judicial  decree  of  a  court  of  inferior  jurisdiction, 

36  Rev.  Stats.,  c.  18,  §  84,   [1623] ;  L.  O.  L.,  §  7089. 

37  Rev.  Stats.,  c.   18,  §84,   [1623];   L.  O.  L.,  §7090. 

38  Meader    v.    Archer,    65    N.    H.    214,    23    Atl.    521;    Van    Matre   v. 
Sankey,  148  El.  536,  36  N.  E.  628;   L.  O.  L.,  §7089.     See,  also,  §439, 
supra. 

39  Rev.  Stats.,  c.  18,  §85,   [1624];  L.  O.  L.,   §7081. 

40  L.  O.  L.,  §  7092. 

41  L.  O.  L.,  §  7091. 

42  Janes  v.  Cleghorn,  54  Ga.  9. 

«  Nugent  v.  Powell,  4  Wyo.  173,  33  Pac.  23;  In  re  Johnson's  Estate, 
98  Cal.  531,  33  Pac.  460;  Barnard  v.  Barnard,  119  111.  93,  8  N.  E.  320. 

(947) 


§  570  PROBATE    AND   ADMINISTRATION.  [Chap.  40 

and  unless  all  the  jurisdictional  facts  appear  on  the 
record  itself,  it  is  void  on  collateral  attack,44  and  is 
not  an  estoppel  as  against  one  who  did  not  consent  to 
it  and  was  not  served  with  notice  as  the  law  requires.45 
Where  the  adopting  parties  and  the  parents  all  ap- 
peared before  the  county  court  of  a  county  other  than 
that  in  which  the  petitioners  resided,  and  a  decree  was 
entered  without  objection  and  with  the  consent  of  the 
parents,  it  has  been  held  not  subject  to  collateral 
attack.46 

The  adoption  of  a  child  as  an  heir  does  not  neces- 
sarily give  him  a  share  in  the  estate  of  his  adoptive 
parents.  While  his  standing  in  reference  to  their 
property  would  be  the  same  as  a  child  born  to  them, 
such  parent  may  devise  or  bequeath  his  property  to 
others.47 

44  Morris  v.  Dooley,  59  Ark.  483,  28  S.  W.  30,  430. 

45  Ferguson  v.  Jones,  17  Or.  204,  20  Pac.  842. 

46  Milligan  v.  Mclaughlin,  94  Neb.  171,  142  N.  W.  675. 

47  Pemberton  v.  Perrin,  94  Neb.  718,  144  N.  W.  164, 

(948) 


TABLE  OF  PROCEEDINGS— NEBRASKA. 

Table  showing  time  required  to  be  given  and  method  of  service  of 
notice  or  citation  in  proceedings  in  probate  and  guardianship  mat- 
ters in  county  court. 


Proceeding. 


Time. 


Service. 


All  applications  for  appoint- 
ment of  special  adminis- 
trators. 

Hearing  on  account  of  spe- 
cial administrator. 

Petition  for  probate  of  will, 
or  for  appointment  of  ad- 
ministrator. 


Application     for     allowance 
for  support. 


All   special  proceedings. 
Notice  to  creditors. 


Application  to  dispense  with 
administration. 

Application   for  determining 
succession   to   property. 

Petition   to  compel  filing   of 
inventory. 

Application    for    removal    of 
executor  or  administrator. 


Application  of  special  ad- 
ministrator for  license  to 
sell  personal  property. 


None. 

None. 


As   ordered  by 
the  court. 


None,  or  as 
ordered  by 
court. 

As  ordered  by 
court. 

Not  less  than 
six  nor  more 
than  eighteen 
months. 

As  ordered  by 
court. 

As  ordered  by 
court. 

As  ordered  by 
court. 

As  ordered  by 
court. 


None. 


None. 
None. 


Publication  for  three 
weeks  or  as  or- 
dered by  the  court. 

None,  or  as  ordered 
by  court. 

Personal. 

Publication  for  four 
weeks  from  date 
of  order  fixing 
time. 

Publication  for 
thirty  days. 

As  ordered  by  court. 


Personal. 


Personal.  By  pub- 
lication on  non- 
resident. 


None. 


(949) 


TABLE  OF  PROCEEDINGS NEBRASKA. 


Proceeding. 


Time. 


Service. 


Annual  account   of  executor 

or  administrator. 
Application     for     additional 

security  on  bond. 

Application  for  sale  of  per- 
sonal property  by  executor 
or  administrator. 

Application  of  special  ad- 
ministrator for  license  to 
sell  partnership  interest. 

Eeport  of  special  administra- 
tor, partnership  matters. 


Application  for  license  to 
mortgage  real  estate. 

Eeport  of  executor  or  ad- 
ministrator on  mortgag- 
ing real  estate. 

Application  to  compromise 
claim. 

Application  for  permission 
to  bring  suit  to  set  aside 
conveyance  of  decedent. 

Hearing  on  final  account  and 
petition  for  distribution. 


Notice  to  creditors  to  call 
for  their  money. 

Other  applications  in  con- 
nection with  the  adminis- 
tration. 


(950) 


None. 


court. 


As   ordered   by 
court. 


As  ordered  by 
court. 

None,  or  as 
ordered  by 
court. 

As  ordered  by 
court. 


None. 
None. 

None. 

As   ordered  by 
court. 


As  ordered  by 
court. 


None. 
Personal. 

As  ordered  by  court. 
As  ordered  by  court. 


None,  or  as  ordered 
by  court. 


None. 

None. 
None. 

None. 

Waiver  by  parties, 
or  by  publication. 
Usual  practice  for 
three  weeks. 

Publication  for  three 
weeks. 

None,  or  as  ordered 
by  court. 


TABLE    OF   PROCEEDINGS NEBRASKA- 


GUARDIANS. 


Proceeding. 


Time. 


Service. 


Application      for 
ship  of  minor. 


guardian- 


Application  for  temporary 
guardianship  of  incompe- 
tent. 

Application  for  guardian- 
ship of  person  previously 
adjudged  insane. 

Application  for  guardianship 
of  other  incompetent. 

Application  for  guardianship 
of  spendthrift. 

Application  to  mortgage  real 
estate. 

Report  on  mortgaging  real 
estate. 

Applications  for  orders  for 
sales  of  personalty,  for  al- 
lowances for  support  or 
education,  and  in  regard 
to  investments  or  manage- 
ment of  estate. 

Annual  account  of  guardian. 

Final    account    of    guardian 

and  petition  for  discharge. 


As  ordered  by 
court. 


None. 


None. 

Not    less    than 
fourteen  days. 

Not    less    than 
ten   days. 

Not    less    than 
ten   days. 

None. 


As   ordered   by 

court. 
None. 

As   ordered   by 
court. 


None,  except  where 
custody  of  person 
or  property  may 
be  taken  from 
parent.  In  such 
cases  as  ordered 
by  court. 


None. 

None. 
Personal. 

Personal. 
Personal. 
None. 


None,  or  as  ordered 

by  court. 
None. 

Waiver  by  ward. 
Publication  or 
personal  service 
as  ordered  by 
court.  Usual  pub- 
lication three 
weeks. 


(951) 


TABLE    OF    PROCEEDINGS NEBRASKA. 


Proceeding. 


Time. 


Service. 


Application   for  adoption  of 
child. 

Not    less    than 
fourteen  days. 

Personal,    or    publi- 
cation four  weeks 
at   least  ten   days 
prior  to   date   set 
for  hearing. 

In  all  cases  where  personal  service  is  required  by  the  statute  or 
as  ordered  by  the  court,  the  interested  parties,  if  competent  and  of 
lawful  age,  may  waive  same,  or  enter  their  appearance.  In  proceed- 
ings where  both  the  time  for  hearing  and  the  service  of  the  notice 
are  as  ordered  by  the  court,  such  court  may  proceed  instanter  if  the 
interested  parties  are  present,  or  if  the  application  is  one  which  in 
his  opinion  warrants  the  entry  of  the  order  on  a  proper  showing, 
without  notice.  In  administration  proceedings  an  ex  parte  order  for 
the  payment  of  any  of  the  expenses  of  the  administration  of  the 
estate,  or  to  an  heir  or  legatee,  may  be  attacked  on  the  hearing  on 
the  final  account.  A  petitioner  should  always  designate  the  news- 
paper in  which  the  publication  of  any  notice  is  to  be  made. 

(952) 


TABLE  OF  PROCEEDINGS— OREGON. 

Table  showing  time  required  to  be  given  and  method  of  service  of 
citation  in  proceedings  in  probate,  guardianship  and  adoption  matters 
in  Oregon  county  court. 


Proceeding. 


Time. 


Service. 


All  applications  for  appoint- 
ment of  special  adminis- 
trators. 

Hearing  on  account  of  spe- 
cial administrator. 

Application  for  probate  of 
will  in  common  form,  ap- 
pointment of  general  or 
partnership  administrator. 


Applications    for    allowance 
for  support. 


All  special  proceedings. 
Action  to  contest  will. 
Notice  to  creditors. 


Appeal  to  county  court  from 
rejection  of  claim  by  ex- 
ecutor or  administrator. 

Petition  to  compel  filing  of 
inventory. 

Application  for  new  bond. 

Application  for  removal  of 
executor  or  administrator. 

Periodical  account  of  execu- 
tor or  administrator. 

Applications  for  sale  of  per- 
sonal property. 


None. 
None. 


None,  or  as 
ordered  by 
court. 

None,      or      as 

ordered   by 

court. 
As  ordered  by 

court. 
As  in  civil 

cases. 
Six  months. 


Ten  days. 

As  ordered  by 

court. 
As   ordered   by 

court. 


None. 
None. 

None. 


None,  or  as  ordered 
by  court. 

Personal. 

As  in  civil  cases. 

Publication  for  four 
weeks  from  date 
of  notice. 

Personal. 
Personal. 
Personal. 


As   ordered   by   j    Personal, 
court. 


None. 


As   ordered   by 
court. 


None. 


None. 


(953) 


TABLE    OF   PROCEEDIXGS OREGON. 


Proceeding. 


Time. 


Service. 


Application  for  sale  of  real 
estate. 


Notice  of  sale. 


Confirmation  of  sales  of  real 
estate. 


Confirmation     of     executor's 
sales  under  power. 


Account    of   partnership   ad- 
ministrator. 

Application    for    redemption 
of    mortgaged    property. 


Application  to  determine 
amount  due  mortgagee  from 
proceeds  of  sales  of  real 
estate. 

Application    to    compromise 

claim. 
Application     for     order     to 

bring    suit    to    set     aside 

conveyance  of  decedent. 
Hearing  on  final  account  and 

petition    for    distribution. 


Not  less  than 
ten  days  from 
date  of  ser- 
vice. 


Fifteen  days 
from  date  of 
return. 

Fifteen  days 
from  date  of 
filing  report. 

As  ordered  by 
court. 

As  ordered  by 
court. 


Ten  days. 


None. 


None. 

Not    less    than 
four  weeks. 


Personal  on  residents 
of  state.  Publica- 
tion not  less  than 
four  weeks  for 
nonresidents. 

Private  sale.  Pub- 
lication of  notice 
for  four  weeks  and 
posting  three  no- 
tices. 

None. 


None. 


None,  or  as  ordered 
by  court. 

None,  or  as  ordered 
by  the  court,  if 
petition  by  mort- 
gagee. 


Personal,   or   as    or- 
dered by  court. 

None. 


None. 

Publication  for  four 
weeks,  once  a  week 
or  oftener. 


(954) 


TABLE    OF    PROCEEDINGS OREGON. 


Proceeding. 

Time. 

Service. 

Application  of   heir,  devisee 

or  legatee  for  share  of  es- 

tate before  close  of  admin- 

istration. 

Ten  days  before 

Personal. 

term. 

Other  applications  in  connec- 

tion with   the   administra- 

| 

tion. 

As   ordered  by 

None,  or  as  ordered 

court. 

by  court. 

GUARDIANS. 


Proceeding. 


Time. 


Service. 


Application  for  guardianship 
of  minor. 

Application  for  temporary 
guardian  of  incompetent. 

Application  for  guardian- 
ship of  insane  or  incom- 
petent. 

Application  for  guardianship 

of  spendthrift. 
Annual  account  of  guardian. 
Application    for    removal   of 

of  guardian. 


Application  for  discharge  of 
guardian  of  spendthrift  or 
incompetent  or  insane. 

Application   for   new  bond. 

Application  for  sale  of  real 
estate. 


As  ordered  by 
court. 

None. 


Ten  days. 


Ten  days. 
None. 

As  ordered  by 
court. 


As   ordered   by 

court. 
As  ordered   by 

court. 

Not  less  than 
four  nor  more 
than  eight 
weeks. 


None,  or  as  ordered 
by  court. 

None. 


Personal,  or  as  or- 
dered by  court. 

Personal. 
None. 

Personal.  Nonresi- 
dent by  publica- 
tion. 


As  ordered  by  court. 
As  court  may  direct. 


Personal,  not  less 
than  ten  days  from 
date  of  hearing  or 
publication  for 
three  weeks. 


(955) 


TABLE  OF  PROCEEDINGS OREGON. 


Proceeding. 

Time. 

Service. 

Notice  of  sale. 

Private    sale.      Pub- 

lication of  notice 

for     four     weeks 

and  posting  three 

notices. 

Confirmation   of  sale. 

Fifteen     days 

None.  . 

from  date  of 

return. 

Applications   for   orders   for 

sales  of  personal  property, 

allowances  for  support,  or 

education,    and    in    regard 

to  investment  of  assets  and 

management  of  the  estate. 

As   ordered   by 

None,  or  as  ordered 

court. 

by  court. 

Final  account. 

As   ordered   by 

Waiver     by     ward. 

court. 

Publication  or  per- 

sonal   service     as 

ordered  by  court. 

ADOPTION. 

Proceeding. 

Time. 

Service. 

Petition     for     adoption     of 

child,  parents  consenting. 

As   ordered   by 

None,  or  as  ordered 

court. 

by  court. 

Petition     for     adoption      of 

child,  parents  not  consent- 

ing. 

Seven  weeks. 

Personal    service   or 

publication  for  at 

least  three  weeks, 

last       publication 

four    weeks    from 

date    of    hearing, 

on  nonresidents. 

Where  no  service  of  citation  is  required,  and  in  cases  where  the 
method  of  service  is  as  ordered  by  court,  if  the  petition  is  in  proper 
form,  clearly  showing  that  the  party  is  entitled  to  the  order,  it  being 

(956) 


TABLE  OF  DESCENT  OF  REAL  PROPERTY,  ETC. 

substantially  a  formal  matter,  the  court  may  act  on  it  at  once.  When 
service  of  a  citation  is  had  by  publication,  the  paper  in  which  it  ap- 
pears is  designated  by  the  county  judge. 


TABLE  OF  DESCENT  OF  REAL  PROPERTY  AND  OF 
DEGREES  OF  KINSHIP  OF  NEBRASKA. 


V 

CHEAT  UNCLES 

UNCLES 

$ 

UNC*L 
OCSCENDANTS 

P 

This  table  shows  graphically  the  order  of  inheritance  of  real  es- 
tate and  the  degrees  of  relationship  to  the  decedent.  The  figures  in 
the  upper  right-hand  corners  of  the  squares  give  the  order  of  inherit- 
ance, and  those  in  the  upper  left-hand  corners  the  degrees  of  re- 
lationship, thus  indicating  the  oases  in  which  the  right  to  inherit  is 
not  determined  solely  by  the  degree  of  kinship.  For  example,  grand- 
nephews  and  cousins  are  each  within  the  fourth  degree,  but  the  former 
class  inherit  before  the  latter,  because  the  latter  are  descended  from 
a  more  remote  ancestor.  The  small  letters  following  the  figures  in- 
dicate that  the  parties  take  by  right  of  representation.  Lineal  de- 

(957) 


TABLE  OF  DESCENT  OF  REAL  PROPERTY,  ETC. 

Bcendants  of  children  take  in  preference  to  collaterals.  The  surviving 
Bpouse  is  neither  an  heir  nor  of  the  next  of  kin,  but  takes  a  share 
or  interest  in  the  estate  by  virtue  of  the  marital  relation,  and  is 
therefore  omitted  from  the  table. 


TABLE  OF  DESCENT  OF  REAL  PROPERTY  AND  OF 
DEGREES  OF  KINSHIP  OF  OREGON. 


The  figures  and  letters  in  the  squares  have  the  same  meaning  as 
in  the  Nebraska  table.  The  degrees  of  kinship  are  the  same.  The 
surviving  spouse  takes  by  inheritance  in  the  case  of  failure  of  issue, 
but  is  not  of  the  next  of  kin  within  the  usual  definition  of  the  term. 

(958) 


LIFE  EXPECTANCY  TABLES. 


Actuaries' 

American 

Carlisle 

Ages. 

Table. 

Table. 

Table. 

"15 

44.96 

45.50 

45.00 

16 

44.27 

44.85 

44.27 

17 

43.58 

44.19 

43.57 

18 

42.88 

43.53 

42.87 

19 

42.19 

42.87 

42.17 

20 

41.49 

42.20 

41.46 

21 

40.70 

41.53 

40.75 

22 

40.09 

40.85 

40.04 

23 

39.39 

40.17 

39.31 

24 

38.08 

39.49 

38.59 

25 

37.98 

38.81 

37.86 

26 

37.27 

38.12 

37.14 

27 

36.56 

37.43 

36.41 

28 

35.86 

36.73 

35.69 

29 

35.15 

36.03 

35.00 

30 

34.43 

35.33 

34.34 

31 

33.72 

34.63 

33.68 

32 

33.01 

33.92 

33.03 

33 

32.30 

33.21 

32.36 

34 

31.58 

32.50 

31.68 

35 

30.87 

31.78 

31.00 

36 

30.15 

31.07 

30.32 

37 

29.44 

30.35 

29.64 

38 

28.72 

29.62 

28.96 

39 

28.00 

28.90 

28.28 

40 

27.28 

28.18 

27.61 

41 

26.56 

27.45 

26.97 

42 

25.84 

26.72 

26.34 

43 

25.12 

26.00 

25.71 

44 

24.40 

25.27 

25.09 

45 

23.69 

24.54 

24.46 

46 

22.97 

23.81 

23.82 

47 

22.27 

23.08 

23.17 

48 

21.56 

22.36 

22.50 

49 

20.87 

21.63 

21.81 

50 

20.18 

20.91 

21.11 

51 

19.50 

20.20 

20.39 

52 

18.82 

19.49 

19.68 

53 

18.16 

18.79 

18.97 

54 

17.50 

18.09 

18.28 

(959)' 


LIFE    EXPECTANCY    TABLES. 


Actuaries' 

American 

Carlisle 

Ages. 

Table. 

Table. 

Table. 

55 

16.86 

17.40 

17.58 

56 

16.22 

16.72 

16.89 

57 

15.59 

16.05 

16.21 

58 

14.97 

15.30 

15.55 

59 

14.37 

14.74 

14.92 

60 

13.77 

14.10 

14.34 

61 

13.18 

13.45 

13.82 

62 

12.61 

12.86 

13.31 

63 

12.05 

12.26 

12.81 

64 

11.51 

11.67 

12.30 

65 

10.97 

11.10 

11.79 

66 

10.46 

10.54 

11.27 

67 

9.96 

10.00 

10.75 

68 

9.47 

9.47 

10.23 

69 

9.00 

8.97 

9.70 

70 

8.54 

8.48 

9.18 

71 

8.10 

8.00 

8.65 

72 

7.67 

7.55 

8.16 

73 

7.26 

7.11 

7.72 

74 

6.86 

6.68 

7.33 

75 

6.48 

6.27 

7.01 

76 

6.11 

5.88 

6.69 

77 

5.76 

5.49 

6.40 

78 

5.42 

5.11 

6.12 

79 

5.09 

4.74 

5.80 

80 

4.78 

4.39 

5.51 

81 

4.48 

4.05 

5.21 

82 

4.18 

3.71 

4.93 

83 

3.90 

3.39 

4.65 

84 

3.63 

3.08 

4.39 

85 

3.36 

2.77 

4.12 

86 

3.10 

2.47 

3.90 

87 

2.84 

2.18 

3.71 

88 

2.59 

1.91 

3.59 

89 

2.35 

1.66 

3.47 

90 

2.11 

1.42 

3.28 

91 

1.89 

1.19 

3.26 

92 

1.67 

.98 

3.37 

93 

1.47 

.80 

3.48 

94 

1.28 

.64 

3.53 

(960) 


INTEREST  TABLE. 

The  following  table  gives  the  values  of  an  annuity 
of  $1.00,  payable  at  end  of  each  year,  at  four,  five,  six 
and  seven  per  cent  interest  for  from  one  to  fifty  years, 

the  interest  being  compounded  annually. 

Years 

4%  Int. 

5%  Int. 

6%  Int. 

1%  Int. 

1 

.961538 

.952381 

.943396 

.934579 

2 

1.886095 

1.859410 

1.833393 

1.808018 

3 

2.775091 

2.723248 

2.673012 

2.624316 

4 

3.629895 

3.545951 

3.465106 

3.387211 

5 

4.451822 

4.329477 

4.212364 

4.100197 

6 

5.242137 

5.075692 

4.917324 

4.766540 

7 

6.002055 

6.786373 

5.582381 

5.389289 

8 

6.732745 

6.464323 

6.209794 

5.971299 

9 

7.435332 

7.107822 

6.801692 

6.515232- 

10 

8.110896 

7.721735 

7.360087 

7.023582 

11 

8.760477 

8.306414 

7.886875 

7.498674 

12 

9.385074 

8.863252 

8.383844 

7.942686 

13 

9.985648 

9.393573 

8.852683 

8,367651 

14 

10.563123 

9.898641 

9.249984 

8.745468 

15 

11.118387 

10.379658 

9.712249 

9.107914 

16 

11.652296 

10.837770 

10.105895 

9.446649 

17 

12.165669 

11.274066 

10.477260 

9.763223 

18 

12.659297 

11.689587 

10.827603 

10.059087 

19 

13.133939 

12.085321 

11.158116 

10.335595 

20 

13.590326 

12.462210 

11.469921 

10.594014 

21 

14.029160 

12.821153 

11.764077 

10.835527 

22 

14.451115 

13.163003 

12.041582 

11.061241 

23 

14.856842 

13.488574 

12.303379 

11.272187 

24 

15.246963 

13.798642 

12.550358 

11.469334 

25 

15.622080 

14.093945 

12.783356 

11.653583 

26 

15.982769 

14.375185 

13.003166 

11.825779 

27 

16.329586 

14.643034 

13.210534 

11.986709 

28 

16.663063 

14.898127 

13.406164 

12.137111 

29 

16.983715 

15.141074 

13.590721 

12.277674 

30 

17.292033 

15.372451 

13.764831 

12.409041 

31 

17.588494 

15.592811 

13.929086 

12.531814 

32 

17.873552 

15.802677 

14.084043 

12.646555 

61  —  Pro.  Ad. 

(961) 

INTEREST    TABLE. 


Years 

4%  Int. 

5%  Int. 

6%  Int. 

7%  Int. 

33 

18.147646 

16.002549 

14.230230 

12.753790 

34 

18.411198 

16.192904 

14.368141 

12.854009 

35 

18.664613 

16.374194 

14.498246 

12.947672 

36 

18.908282 

16.546852 

14.620987 

13.935208 

37 

19.142579 

16.711287 

14.736780 

13.117017 

38 

19.367864 

16.867893 

14.846019 

13.193473 

39 

19.584485 

17.017041 

14.949075 

13.264928 

40 

19.792774 

17.159086 

15.046297 

13.331709 

41 

19.993052 

17.294368 

15.138016 

13.394120 

42 

20.185627 

17.423208 

15.224543 

13.452449 

43 

20.370795 

17.545912 

15.306173 

13.506962 

44 

20.584841 

17.662773 

15.383182 

13.557908 

45 

20.720040 

17.774070 

15.455832 

13.605522 

46 

20.884654 

17.880067 

15.524370 

13.650020 

47 

21.042936 

17.981016 

15.589028 

13.691608 

48 

21.195131 

18.077158 

15.650027 

13.730474 

49 

21.341472 

18.168272 

15.707572 

13.766800 

50 

21.482185 

18.255925 

15.761861 

13.800746 

(962) 

APPENDIX. 

SYNOPSIS  OF  LAWS  ENACTED  BY  THE  NE- 
BRASKA LEGISLATURE  AT  ITS  THIRTY- 
FOURTH  SESSION  AFFECTING  PROBATE, 
GUARDIANSHIP  AND  ADOPTION  MATTERS 
IN  THE  COUNTY  COURTS. 

Senate  File  50.  This  act  amends  section  2449  of 
the  Revised  Statutes  and  establishes  an  entirely  new 
fee  system. 

It  provides  that  the  county  judge  shall  be  entitled  to 
the  following  fees  in  probate  matters:  For  the  settle- 
ment of  the  estate  of  a  decedent,  the  gross  value  of 
which,  including  real  estate,  does  not  exceed  $1,000,  the 
sum  of  $10;  where  such  value  is  over  $1,000  and  under 
$2,000,  the  sum  of  $15,  and  where  such  value  exceeds 
$2,000,  the  sum  of  $35.  Such  fees  are  in  full  of  any 
and  all  services  to  be  performed  by  the  judge  in  the 
settlement  of  an  estate  in  which  no  contest  arises, 
and  include  one  copy  of  the  will  and  probate  thereof 
for  record  in  the  office  of  the  registrar  of  deeds.  In 
other  cases,  where  copies  of  instruments  are  necessary, 
he  shall  be  allowed  a  fee  of  fifty  cents  for  the  first  hun- 
dred words  and  ten  cents  for  each  additional  hundred 
words  or  fraction  thereof.  In  case  of  a  contest  he  is 
allowed  a  fee  of  $2  for  each  day  consumed.  For  reap- 
pointment  of  an  executor  or  administrator  or  appoint- 
ment of  an  administrator  de  bonis  non,  $10,  and  for 
proceedings  dispensing  with  the  administration  of 
estates,  $10. 

(963) 


964  APPENDIX. 

In  cases  where  proceedings  are  brought  before  one 
judge  and  concluded  before  another,  the  fee  based  on 
the  value  of  the  estate  is  to  be  equally  divided  between 
them. 

In  matters  of  guardianship  or  trusteeship  the  court 
is  allowed  the  sum  of  $8  for  the  appointment  of  a 
guardian  or  trustee,  the  sum  of  $1.50  per  annum  while 
such  matters  are  pending  in  court  for  hearings  on  re- 
ports of  such  officers,  and  $3  for  each  final  settlement 
and  discharge. 

In  adoption  matters  he  is  entitled  to  a  fee  of  $8,  for 
the  entire  proceeding. 

All  the  above  fees  are  in  addition  to  the  printers' 
fees  for  the  publication  of  notices  required  by  law  to 
be  given  in  such  proceedings. 

It  went  into  effect  April  15,  1915. 

House  Roll  613.  This  act  amends  section  1235  of 
the  Revised  Statutes,  by  giving  the  county  board  juris- 
diction to  appoint  an  acting  judge,  who  shall  preside 
over  the  court  whenever  the  judge  is  absent  from  the 
county,  disqualified  or  incapacitated.  He  is  required 
to  give  bond  in  the  same  manner  as  a  county  judge 
who  has  been  elected  to  the  office. 

It  went  into  effect  April  15,  1915. 

House  Roll  178.  This  act  repeals  sections  1536, 
1537,  1538  and  1539,  Revised  Statutes  (see  sections 
135,  136,  137  and  138,  supra),  and  provides  for  the  de- 
termination of  heirship  in  cases  where  the  party  has 
been  dead  for  two  years,  possesses  real  property 
in  this  state  and  no  application  has  ever  been  made  for 
the  appointment  of  an  administrator.  Jurisdiction  to 
make  such  order  is  vested  in  the  county  court  of  the 


APPENDIX.  965 

county  in  which  the  decedent  resided,  or  if  a  non- 
resident of  the  state,  of  the  county  in  which  he  died 
seised  of  an  estate  of  inheritance  in  real  estate. 

Any  heir  of  such  decedent  or  person  claiming  under 
mesne  conveyances  from  such  heir  may  file  his  verified 
petition  in  the  county  court  having  jurisdiction  after 
the  expiration  of  the  two  year  period,  which  petition 
shall  set  out  the  residence  and  date  of  death  of  the 
decedent,  a  full  description  of  his  real  estate  in  this 
state,  an  enumeration  of  all  the  heirs,  and  that  no 
application  has  been  made  for  the  appointment  of  an 
administrator.  If  made  by  a  party  claiming  under 
a  mesne  conveyance-  from  an  heir,  it  must  set  out  the 
nature  and  extent  of  his  interest. 

On  the  filing  of  the  application  a  date  is  fixed  for 
the  hearing,  which  date  must  be  within  not  less  than 
thirty  nor  more  than  sixty  days.  A  notice  or  citation 
is  issued  and  service  had  on  all  parties  interested  by 
publication  thereof  for  three  successive  weeks  in  a 
legal  newspaper  of  the  county. 

Any  person  claiming  to  be  an  heir  may  appear  at  the 
hearing  and  establish  his  rights.  If  the  court  has 
acquired  jurisdiction  and  the  allegations  of  the  peti- 
tion are  proved,  the  court  makes  an  order  determining 
who  are  the  heirs  of  the  decedent.  Such  order  is  bind- 
ing on  all  the  heirs  and  creditors,  excepting  only  such 
creditors  as  have  subsisting  liens.  As  it  is  a  final  order 
determining  substantial  rights  of  parties,  an  appeal 
may  be  taken  to  the  district  court. 

Sections  135,  136,  137  and  138,  supra,  are  therefore 
obsolete. 

Senate  File  68.  This  act  amends  section  6632  of 
the  Revised  Statutes  in  regard  to  the  assessment  of 


966  APPENDIX. 

the  inheritance  tax  by  requiring  the  court,  on  the  filing 
of  the  report  of  the  appraiser,  to  fix  a  day  for  making 
the  appraisement  and  notify  all  interested  parties,  and 
on  that  date  appraise  the  property,  and  from  such 
appraisal  and  report  fix  the  value  of  the  shares  and 
interests  liable  for  such  tax  and  the  amount  of  the 
taxes  due  thereon.  The  court  is  also  given  power  in 
cases  where  it  appears  from  the  petition  of  an  inter- 
ested party  that  an  estate  is  not  liable  for  a  tax,  after 
notice  to  the  county  attorney,  to  make  an  order  or  find- 
ing that  such  estate  is  not  liable. 

Senate  File  59.  Under  this  act  the  proceedings  for 
mortgaging  real  estate  by  guardians  for  the  purpose 
of  paying  existing  mortgages  are  identical  with  that  of 
executors  and  administrators. 

The  acts  concerning  dispensing  with  administration, 
assessment  of  the  inheritance  tax  and  mortgaging  land 
by  guardians  take  effect  July  8,  1915. 


TABLE  OF  CASES. 


A 

Page 

Aaron  v.  Mandel,  78  Ky.  427 9i?8 

Aaronstein  v.  Irvine,  49  La.  Ann.  1478 900 

Abbott  v.  Abbott,  41  Mich.  4oO 65,  125 

v.  Coburn,  28  Vt.  663 538 

v.  Miller,  10  Mo.  141 405 

Abila  v.  Burnett,  33  Cal.  658 498 

Ackley  v.  Dygert,  33  Barb.  (N.  Y.)   176 502 

Adair  v.  Adair,  30  Ga.   102 141 

Adams  v.   Brackett,  5   Met.    (Mass.)    280 553 

v.  Dennis,   76   Neb.   682 454 

v.  Field,   21   Vt.    256 65 

v.  Harris,  47  Miss.   144 388 

v.  Lewis,  5   Saw.  229 16 

v.  Morrison,  4  N.  H.   166 512 

v.  Petrain,  11  Or.  304 767,  770,  775 

v.  Specht,  40  Kan.   387 839 

v.  Winne,  7  Paige   (N.  Y.),  97 98 

Adams'  Lessee  v.  Jeffries,  12  Ohio,  253 483 

Aetna  Life  Ins.  Co.  v.  Swayze,  30  Kan.  18 307 

Aikin  v.  Aikin,  12  Or.  293 610,  629 

v.  Crabtree,   12  Or.  244 424,  427 

T.  Dunlap,  16  Johns.  (N.  Y.)  77 569 

v.  Weckerly,   19  Mich.   482 123 

Albers  v.  Kozeluh,  68  Neb.  523 532,  900 

Albin  v.  Parmele,  70  Neb.  740 41,  47 

Albright  v.  Cobb,  30  Mich.  358 303 

Aldrich  v.  McClelland,  34  N.  J.  Eq.  237 237 

Alexander  v.   Alexander,  26  Neb.   75 122 

v.  Alexander,   41    N.   C.    230 52,  54 

v.  Bryan,  110  U.   S.  414 784 

v.  Buffington,  66   Iowa,   360 865 

v.  Fisher,    18    Ala.    374 336 

Alf ord  Carriage  Co.  v.  Gleason,  36  Conn.  86 261 

Alfred  v.  McKay,  36  Ga.  440 821 

Alger  v.  Colwell,  2   Gray   (Mass.),  404. 195 

(967) 


968  TABLE    OF    CASES. 


Allaire  r.  Allaire,  37  N.  J.  L.  312 125 

Ailing  v.  Newport  Probate  Court,  18  R.  I.  612 348 

Allen  v.  Bartlett,   52   Kan.   387 676 

v.  Dundas,  3  Term    Rep.  125 .• 216 

v.  McCoy,  8  Ohio,  418 615 

v.  Sanders,  34  N.  J.  Eq.  203 242 

v.  Shephard,  87  111.  314 518 

V.  Smith,  29  Neb.  74 434 

v.  Walsh,  25  Minn.  543 435 

Allison  v.  Allison,  101  Va.  537 40 

Allyn  v.  Cole,  3  Neb.  Unof .  108 862 

Alvey  v.  Hartwig  (Md.),  67  Atl.  132 821 

American  Bible  Society  v.  Price,  115  HI.  623 89,  131 

American  Board  of  Commissioners,  Appeal  of,  27  Conn.  344 772 

American  Seaman's  Friend  Society  v.  Hopper,  39  N.  Y.  619 85 

American  State  Bank  v.  Huntington,  34  Neb.  597 456 

Ames  v.  Armstrong,  106  Mass.  15 766 

Ames'  Will,  40  Or.  495 60,  83,  86 

Amis  v.  Cameron,  55  Ga.  449 203 

Amoskeag  Mfg.  Co.  v.  Barnes,  84  N.  H.  25 75,  432,  438 

Amsbaugh  v.  Exchange  Bank,  33  Kan.  100 470 

Andersen  v.  Andersen,  69  Neb.  565 19,  734 

Anderson  v.  Anderson,  112  N.  Y.  104 164 

v.  Anderson,  42  Vt.  350 854 

v.  Bogard,  83   Neb.   8 42,  260 

v.  Bradford,  5  J.  J.  Marsh.    (Ky.)    69 567 

v.  Chicago  B.  &  Q.  By.  Co.,  35  Neb.  95 299 

V.  Mather,  44  N.  Y.  249 877 

v.  Piercy,  20  W.  Va.  282 303 

v.  Schertz,  94  Neb.  390 402,  623,  624 

Andrew  v.  Hinderman,  71  Wis.  148 314 

v.  Motley,  12  Com.  B.,  N.  S.,  514 96 

Andrews  v.  Avory,  14  Graft.  (Va.)  236 538 

v.  Bassett,  92   Mich.  449 559,  720 

v.  Carr,  2  R.  I.  493 238 

v.  Tucker,  7  Pick.   (Mass.)   250 237,  254,  303 

Angell  v.  Bobbins,  4  R.  I.  493 537 

Ansley  v.  Baker,  14  Tex.  607 422 

Appel  v.  Byers,    98    Pa.    479 55 

v.  Kelsey,  47   Ark.   413 422 

Apple,  Estate   of,   66   Cal.   432 403 


TABLE    OF   CASES.  969 

Page 

Archambault  v.  Blanchard,  198  Mo.  384 89 

Arlington  State  Bank  v.  Paulsen,  57  Xeb.  117 326,  375,  376 

Armstrong  v.  Armstrong,  63  Wis.  162 145 

v.  Stowe.  77  N.  C.  360 235 

Armstrong's  Appeal,  63  Pa.  312 585 

Arnold  v.  Dean,  61  Tex.  349 553 

Arthur's  Appeal,  1  Grant  (Pa.),  55 825 

Aspden  v.  Nixon,  4  How.  U.  S.  467 416 

Aston  v.  Galloway,  38  N.  C.  126 579 

Atcheson  Y.  Scott,  51  Tex.  212 334 

Atkins  v.  Atkins,  18  Neb.  474 603 

v.  Sanger,  1  Pick.  (Mass.)  192 149 

Atkinson  v.  Hasty,  21  Neb.  663 215,  216,  217,  220,  225 

v.  Mays,  57  Neb.   137 156 

v.  Staig,  13  R.  I.  725 156 

Atwood  v.  Atwood,  22  Pick.  (Mass.)  283 606 

Aubert's  Appeal,  119  Pa.  48 99 

Aubuchon  v.  Aubuchon,  113  Mo.  260 515 

Austin  v.  Munroe,  47  N.  Y.  460 347 

v.  Wilson's  Exrs.,  21  Ind.  252 , 334 

Ayers  v.  King,  168  Mo.  240 749 

v.  Palmer,  57  Cal.  309 376 

Ayres'  Estate,  In  re,  84  Neb.  16 66,  147 

B 

Baacke  v.  Baacke,  50  Neb.  18 98,  100,  103 

Babcock  v.  Cobb,  11  Minn.  347 542 

Bachelor  v.  Korb,  58  Neb.  122 883,  885,  889,  900 

v.  Schmela,  49  Neb.  37 679,  706 

Backenstoss  v.  Stahler's  Admrs.,  33  Pa.  251 525 

Backhouse,  In  re,  185  N.  Y.  544 650 

Bacon  v.  Morrison,  57  Mo.  68 519 

Badenhoff  v.  Johnson,  11  Nev.  87 848,  853 

Badger  v.  Daniel,  76  N.  C.  372 937 

Baer  v.  Ballingall,  37  Or.  422 614,  621 

Bailey  v.  Dillworth,  10  Smedes  &  M.  (Miss.)  404 308 

v.  Garrison,   68   Neb.    679 869 

v.  Wright,  39  Mich.  96 290 

Baker  v.  Baker,  51  Wis.  538 279 

v.  Bourne,   127   Ind.   466 277 


970  TABLE    OF    CASES. 

Page 

Baker  v.  Bradsby,  23  111.  632 524 

v.  Davis,    18   N.   H.    325 261 

v.  .Martin,    156    Ind.    53 547 

v.  Moor,    60    Me.    443 773 

v.  Raleigh  &  G.  R.  Co.,  91  N.  C.  208 557 

v.  Rust,   37   Tex.   242 470 

Baker's  Estate,  In  re,  178  N.  Y.  575 642 

Balch  v.   Smith,   12   N.   H.   437 822 

Baldridge  v.  State,  69  Inci.  196.  . , 846 

Baldwin  v.  City  of  New  York,  42.  Barb.  (N.  Y.)   529 18,  320 

v.  Parker,    99    Mass.    79 138 

v.  Sheldon,   48   Mich.   580 58 

v.  Spriggs,    65    Md.    373 100 

Baldwin's  Appeal,  81  Pa.  441 417 

Ball  v.  Clothier,  34  Wash.  299 547 

v.  Collins   (Tex.),  5  S.  W.  622 539 

v.  LeClair,    17   Neb.   39 921,  929 

Ballantine  v.   Proudfoot,  62   Wis.   217 88 

Ballard  v.  Ballard,  18  Pick.    (Mass.)    41 582 

v.  Carter,   5    Pick.    (Mass.)    112 99 

Bambrick  v.  Webster  Grove  Pres.  Church,  53  Mo.  App.  225 349 

Bancroft  v.  Andrews,  6  Cush,  (Mass.)  493 252 

Bane  v.  Wick,   14  Ohio   St.   505 278 

Bane's    Appeal,    27    Pa.    492 922 

Bangs  v.  Gray,  60  Neb.   457 456 

Bank  of  Maywood  v.  McAllister's  Estate,  36  Neb.  188 442 

Banks  v.  Ammon,  27  Pa.   172 530 

v.  Steele,   27    Neb.    138 356,  357 

v.  Uhl,  5  Neb.  240 818 

Barde  v.  Wilson,  54  Or.  68. 794 

Barker  v.  Brown,   18   111.   91 436 

v.  Ladd,    3    Saw.    44 298 

Barnard  v.  Barnard,  118  HI.  93 947 

Barnes  v.  Barnes,  66  Me.  286 125 

Barnes'  Estate,  In  re,  36  Or.  282 431 

Barney  v.  Babcock,  115  Wis.  409 759 

v.  Saunders,   16  How.   (U.  S.)   453 683 

Barnwell  v.  Thudgell,  56  N.  C.  50 546 

Barrel   v.   Kern,   44   Or.   502 302 

Barrett   v.   French,   21   Or.    19 432 

v.  Provineher,  39  Neb.  773 916 


TABLE    OF    CASES.  971 

Page 
Bartels  v.   Grove,  4  Wash.   632 7/8 

Bartholomew  v.  Warner,  32   Conn.   98 333 

Bartlett  v.  Bartlett,  15  Neb.  593 456 

v.  Smith,   5   Neb.   Unof.    337 357 

Baskett  v.  Hassell,   107   U.    S.    602 589,591 

Bassett   v.   Miller,   8   Md.   548 684 

Bates  v.  Shraeder,  13  Johns.   (N.  Y.)   26 748 

Battey  v.  Battey,  94  Neb.   729 326 

Baucus  v.  Barr,  45  Hun   (N.  Y.),  552 781 

Baum  v.  Lynn,  72  Miss.  932 928 

Bauman  v.   Franse,   37  Neb.   807 627 

Bauserman   v.   Charlott,   46   Kan.   490 436 

Bayer's  Estate,  In  re,  95  Neb.  488 274,   282 

Bayley,  In  re,  67  N.  J.  Eq.  566 701 

Bazzo  v.  Wallace,  16  Neb.  290 793,  798 

Beak  v.  Beak,  L.  E.  13  Eq.  189 591 

Beall  v.  New  Mexico,   16   Wall.    (U.   S.)    535 775 

Beals  v.  Crowley,  59  Cal.  665 589 

Beam   v.   Froneberger,    77    N.    C.    540 919 

Bean  v.  Bean,  144  Mich.  599 89 

v.  Martin,   6   Pick.    (Mass.)    269 309 

Beaubien  v.  Cicotte,  12  Mich.  469 147,  164 

Becker  v.  Anderson,  6  Neb.  499 314,   319 

v.  Anderson,   11  Neb.  494.. 314,   319 

v.  Linton,    80    Neb.    655 715 

Beebe   v.   Estabrook,   79   N.   Y.   246 54 

v.  McKinzie,    19    Or.    292 127 

Beeber's  Appeal    (Pa.),   8   Atl.    191 675 

Beecher  v.  Buckingham,  18  Conn.  110 286 

Beem    v.    Kimberly,    72    Wis.    343 756 

Beene's  Admr.  v.   Collenberger,   38   Ala.   647 529 

Beer  v.  Plant,  1  Neb.  Unof.  372 2,  17,  157,  296 

Beideman  v.  Sparks,  64  N.  J.  Eq.  374 772 

Beisley  v.   Howard,    117    Ala.    449 252 

Belcher  v.   Branch,   11   R.   I.    296 328 

Bell  v.  City  of  New  York,   10  Paige    (N.   Y.),  49 606 

v.  People,    84   111.    230 780 

v.  Taylor,  14  Kan.   277 512 

v.Walker,    54    Neb.    222 ...805 

Bell's  Appeal,  66  Pa.  498 899 

Bellinger  v.  Thompson,  26  Or.  320 241,  756,  764,  771,  780 


972  TABLE    OF    CASES. 

Page 

Benjamin  v.  Bush,  89  Neb.  334 : 323,  416 

Bennett  v.  Bennett,  65  Neb.  432 859 

v.  Bittle,   4   Rawle    (Pa.),    339 , 52 

v.  Hibbert,    81    Iowa,    154 89 

v.  Ives,   30    Conn.    329 568 

v.  Overing,    16    Gray    (Mass.) ,    267 776 

v.  Owen,   13   Ark.   177 529 

v.  Taylor,  4  Neb.  Unof.   800 806,  817 

v.  Van   Riper,   47  N.   J.   Eq.   563 56 

Benoist  v.  Murrin,  58  Mo.  307 88 

Benson,  In  re,  69  N.  Y.  499 584 

Bently  v.  Baker,  61  Neb.  92 778 

Bentley  v.  Bentley's  Estate,   72  Neb.   803 457 

v.  Torbet,  68   Iowa,   122 863 

Benton  v.   Benton,   63   N.   H.   289 53 

Benton,  In  re,   234   111.   666 641 

Bfirgin  v.  Haight,  99   Cal.   52 546,  547 

Berkmeyer  v.  Kellerman,  32  Ohio  St.  239 918 

Bernard  v.  Minshull,  1  Johns.  Ch.  (Eng.)  276 58 

Berry  v.  Hamilton,  12-  B.  Mon.   (Ky.)    183 196 

v.  Johnson,  50  Me.  401 826 

Berry,  In  re  Estate  of,  154  Iowa,  301 128 

Besancon  v.  Wagner,  12  N.  D.  240 347,  691 

Besondy,   In   re,   32   Minn.   385 856 

Besser  v.  Joyce,  9  Or.  310 606 

Best  v.  Gralap,  69  Neb.  811 17,  465,  466,  467 

Betcher  v.  Betcher   (Minn.),  86  N.  W.   1 710 

Betts  v.  Betts,  113  Iowa,  111 146,  691 

Bever  v.  Spangler,  93  Iowa,  576 146 

Bickel  v.   Butcher,   35   Neb.   361 443 

Biddison  v.   Story,  57  Md.   96 249 

Biddle  v.  Wendell,  37  Mich.  452 785 

Bigelow's  Exrs.  v.  Bigelow's  Admrs.,  4  Ohio,  138 170,  250 

Bills  v.  Scott,  49  Tex.  430 89,  250 

Bingham,  In  re,  127  N.  Y.  296 498 

v.  Maxey,  15  111.   295 333,  529 

Birdsall  v.  Hewlett,  1  Paige  (N.  Y.),  32 , 582 

Birney  v.  Hann,  3  A,  K.  Marsh.   (Ky.)   322 748 

v.  Wilson,  88  Ohio  St.  426 726 

Bisbie  v.  Gleason,  21  Neb.  236 921,  923,  924,  929,  930 


TABLE    OF    CASES.  973 

Page 

Bishop  v.  Boyle,  9  Ind.  169 605 

Bitner  v.  Bitner,  65  Pa.  347 89 

Bixby  v.  Jewell,   72   Neb.   755 480,  499,   534,  628 

Black  v.  Henry  G.  Allen  Co.,  12  Fed.  618 406 

T.  Whitall,   9   N.   J.   Eq.   572 597 

Blackman  v.  Bauman,  22  Wis.  611 543,  885,  890 

Blackstone  v.  Miller,  183  U.  S.  202 644 

Blackwell  v.   Townsend,   91   Ky.   609 486 

Blackwood  v.  Eegina,  8  App.  Cas.  82 412 

Blaine  v.   Traux,   58   Or.   582 433 

Blair,  In  re,  59  X.  Y.  Supp.  1090 156 

Blake  v.   Chambers,   4   Xeb.   90 330,   686 

v.  Pegram,   101   Mass.   592 843 

v.  Pegram,    109   Mass.   541 690,    910 

Blakeley's  Will,  In  re,  48  Wis.  294 148 

Bland  T.   Fleeman,  58   Ark.   84 575 

Blaskower   v.   Steel,   23    Or.    198 427 

Blodgett  v.   Hitt,   29   Wis.   169 , 547 

Bloom  v.  Burdick,  1  Hill  (X.  Y.),  130 502 

Blount  v.  Pritehard,  88  X.  C.  445 484 

Blower  v.  Morrett,  3  Ves.  Sr.  420 585 

Blume  v.  Hartman,  115  Pa.  32 144 

Blythe  v.  Ayres,  96  Cal.  532 730 

Boales  v.  Ferguson,  55  Xeb.  565 679,  706,  746,  750 

Board  of  Commissioners,  Dawes  Co.  v.  Furay,  5  Xeb.  Unof.  507. . . .   219 

Boardman  v.  Wark,  40  Minn.   399 858 

Boaz's  Admr.  v.  Milliken,  83  Ky.  634 859 

Bobb  v.  Barnum,  59  Mo.  394 625 

Boden  v.  Meier,  71  Xeb.  191 23,  575,  594,  835 

Boevink  v.   Christiaanse,   69   Xeb.   256 376,   381,   383 

Boggs  v.  Boggs,  62  Xeb.  294 92,  134,  135,  136 

Boland's  Estate,  35  Cal.   310 485 

Bolander's  Estate,  In  re,  38  Or.  490 268,  359 

Bellinger  v.  Knox,  3  Xeb.  Unof.  811 54 

Bolton  Y.   Ohio   Xat.   Bank,   50  Ohio   St.   290 263 

Bonacum  v.  Manning,  85  Xeb.  60 25,  325,  376,  720 

Bond  v.  Armstrong,  88  Ind.  65 893 

v.  Lockwood,   33   111.   212 856,   870,   918,   927 

v.  Zeigler,    1    Ga.    324 334 

Bond's  Lessee  v.  Swearingen,  1  Ohio  St.  395 263 

Bone's  Appeal,  27   Pa.   4C2 865 


974  TABLE    OF    CASES. 

Page 

Bonnell  v.  Holt,  89  HI.  71 541 

Boody  v.  Emerson,  17  N.  H.  577 538 

Booker  v.  Armstrong,  93  Mo.  49 685.  687 

Booth  v.  Foster,  11  Ala.  312 494 

v.  Starr,  5  Day  (Conn.) ,  275 458 

Booyer  v.  Hodges,  45  Miss.  78 354 

Borcher  v.  McGuire,  85  Neb.  646 897,  921 

Boron  v.  Kent,  190  N.  Y.  422 596 

Borneman  v.  Sindlinger,  15  Me.  429 572 

Bostwick  v.  Skinner,  80  HI.  158 490 

Boughton  v.  Flint,  74  N.  Y.  476 580 

Bouldin  v.  Ewart,  63  Mo.  330 512 

Bourne  v.  Stevenson,  38  Me.  499 262,  271 

Bowen  v.  Hoxie,  137  Mass.  527 733,  737 

v.     Johnson,  6  Ind.  110 98 

v.  Payton,  14  E.  I.  257 52 

Bowers  v.  Holladay,  28  Or.  491 432 

v.  Swander,  121  Ind.  164 865 

Bowman's  Estate,  In  re,  133  Wis.  594 156,  448 

Boyd  v.  Boyd,  66  Pa.  293 136 

Boyd's  Sureties  v.  Oglesby,  23  Gratt.  (Va.)  684 307 

Boyer  v.  Hawkins,  86  Iowa,  50 567 

v.  Robinson,  26  Wash.  117 750 

Boylston  v.  Carver,  11  Mass.  215 145 

Boyse  v.  Rossborough,  6  H.  L.  Cas.  6 136 

Brackenridge  v.  Holland,  2  Blackf.  (Ind.)  377 546 

Bradish  v.  Gibbs,  3  Johns.  Ch.  (N.  Y.)  523 102 

Bradiee  v.  Andrews,  137  Mass.  50 56 

Bradley  v.  Bradley's  Admr.,  83  Va.  75 687,  707 

v.  Missouri  Pac.  Ry.  Co.,  51  Neb.  653 213,  218 

Bradley's  Estate,  11  Phila.  (Pa.)  87 446 

Bradshaw  v.  Commonwealth,  3  J.  J.  Marsh.  (Ky.)  332 711 

Brady,  In  re  (Idaho),  79  Pac.  75 912 

Bragaw  v.  Bolles,  51  N.  J.  Eq.  84 550 

Braiden  v.  Mercer,  44  Ohio  St.  339 931 

Branch  v.  Du  Bose,  55  Ga.  21 919 

Brand  v.  Brand,  109  Ky.  721 446 

Brandon  v.  Jensen,  79  Neb.  569 399,  532,  628 

Brant  v.  Wilson,  8  Cow.  (N.  Y.)  56 97 

Brathwaite  v.  Harvey,  14  Mont.  208 413 

Braun  v.  Mathiesen,  139  Iowa,  409 703 


TABLE    OF    CASES.  975 

Page 

Brawley  v.  Collins,  88  N.  C.  605 52 

Bray  v.  Adams,  114  Mo.  486 . 899 

Brazee  v.  Schofield,  2  Wash.  Tor.  209 897 

Brazer  v.  Dean,  15  Mass.  183 279 

Brenham  v.  Davidson,  51  Cal.  352 859 

Brenner  v.  Alexander,  16  Or.  351 476 

Brewer  v.  Ernest,  81  Ala.  435 911 

Brewster  v.  Balch,  9  Jones  &  S.  (N.  Y.)   63 769 

Brewster's  Estate,  In  re,  113  Mich.  561 684,  695 

Brichacek   v.  Brichacek,   75   Neb.   417 623 

Bridge  v.  Swain,  3  Eedf .  Sur.   (N.  Y.)  487 497 

Bridgman  v.  Bridgman,  30  W.  Va.  212 213 

v.  Green,  Wilmot  Ops.  58,  65 719 

Briggs  v.  Baptist  Church  (Me.),  8  Atl.  267 780 

Brigham  v.  Shattuck,  10  Pick.   (Mass.)    308 58,  584 

Brinckerhoff  v.  Eemsen,  8  Paige   (N.  Y.),  488 63,  65 

Brinkworth  v.  Hazlett,  64  Neb.   502 463 

Brinton  v.  Van  Cott,  8  Utah,  480 467 

Brisbane  v.  Huntington,  128  Iowa,  166 730 

Broaclridge  v.  Sackett,  138  Mich.   293 577 

Brock,  Ex  parte,  37  S.  C.  348 125 

Brodrib  v.  Tibbitts,  63   Cal.  80 847 

Bromley's  Estate,  In  re,   114  Mich.  53 141 

Brooks   v.    Dutcher,    22    Neb.    644 131 

v.  Jackson,  125  Mass.  307 782 

v.  Rayner,   127   Mass.   268 930 

Broughton  v.  Bradley,  34  Ala.  694 245 

Brown  v.  Brown,  3  Conn.  299 82 

v.  Brown,  71  Neb.  200 54,  734,  736 

v.  Brown,   41   N.    Y.    507 554 

v.  Brown,   7   Or.   285 327 

v.  Brown,  79  Va.  648 585 

v.  Brown,  16  Vt.  197 576 

v.  Bulkley,  14  N.  J.  Eq.  294 146 

v.  .Burdick,  25  Ohio  St.  260 158 

v.  Chase,    4    Mass.    436 , ...863 

v.  Fisher,  77  Minn.   1 900 

v.  Forbes,  1  Neb.  Unof .  888 455 

v.  Forsche,  43  Mich.  500 200 

v.  Foster,  6  R.  I.  564 . 537 

v.  Hannah,  132  Mich.  33 512 


976  TABLE   OP   CASES. 

Page 

Brown  v.  Harman,  76  Neb.  28 224,  225 

v.  Jacobs'  Estate,  24  Neb.  714 272,  775 

v.  Mitchel,  75  Tex.  9 162 

v.  Powell,  45  Ala.   149 496 

r.  Probate  Judge,  42  Mich.  501 931 

v.  Eedwyne,  16  Ga.  67 825,  826 

v.  Sherrer,   5   Colo.   App.   225 101 

v.  Smith,  101  Me.  455 405,  408 

v.  State,   23   Kan.   235 764,  780 

v.  Thorndike,    15   Pick.    (Mass.)    388 99 

v.  Ventress,   24   La.    Ann.    187 242 

v.  Walter,    58    Ala.    310 288 

v.  Watson,  66  Mich.  223 357 

v.  Webster,  87  Neb.  788 117,  465 

v.  Wiley,    107    Ga.    85 567 

T.  Yaryan,  74  Ind.  305 858 

Brown's  Appeal,  68  Pa.  53 519 

Brown,  In  re,  1  B.  Mon.  (Ky.)  56 95 

Brown's  Estate,  In  re,  65  Vt.  331 263 

Browne  v.   Coleman,  62   Or.   461 495,   533,  536 

Brownfield   v.  Holland,   63   Wash.  86 458 

Brubaker  v.  Jones,  23  Kan.  411 519,  538 

Bruce  v.  Moon,  57  S.  C.  60 468 

Bruch  v.  Laatz,  2  Rawle  (Pa.),  392 422 

Bruner's  Appeal,  57  Pa.  52 307 

Brush  v.  Wilkins,  4  Johns.  Ch.   (N.  Y.)   506 102 

Brusha  v.  Hawke,  87  Neb.  534 221,  436,  473 

v.  Phipps,   86   Neb.   822 516 

Bryan  v.  Bauder,   23  Kan.  95 486 

Bryant  v.  Russell,  23  Pick.   (Mass.)   508 352 

v.  Thompson,   128   N.   Y.   426 790 

Buchanan  v.  Buchanan,  75  N.  J.  Eq.  274 323 

v.  Schulderman,   11    Or.    150 40 

Buckingham  v.  Boar,  45  Mich.  244 455 

Buckland  v.  Gallup,  40  Hun  (N.  Y.),  61 301 

Buckley  v.  Buckley,  16  Nev.  180 240 

Buecker  v.  Carr,  60  N.  J.  Eq.  306 383 

Buehler's   Appeal,   100   Pa.    385 596 

Buel  v.  Dickey,  9  Neb.  285 194,  762,  764 

Buerstetta  v.  Buerstetta,  83  Neb.  287 39 

Buford  T.  Gruver,   223   Mo.   231 123 


TABLE    OF    CASES.  977 

Page 

Bugbee  v.  Sargent,  27  Me.  38 555 

Bull  v.  Payne,  47  Or.  581 426 

Bullock's   Admr.   v.   Rogers,   16   Vt.   294 258 

Bundy  v.  McKnight,  48  Ind.  502 83,  87,  91 

v.  Youmans,   44   Mich.    376 362 

Bunker  v.  Rand,  19  Wis.  253 572 

Burbank  v.  Burbank,  152  Mass.  254 50 

v.  Payne,  17  La.  Ann.   15 409 

v.  Sweney,  161  Mass.  490 46 

Burch  v.  Burch,  52  Ind.  136 576 

Buren's  Will,  47  Or.  307 83,  86 

Burger  v.  Frakes,  67  Iowa,  460 853 

Burke  v.  Bishop,  27  La.  Ann.  465 591 

Burke's  Estate,  In  re,  66  Or.  286 219 

Burleigh  v.  Clough,  52  N.  H.  567 46 

v.  Palmer,   74   Neb.   122 327 

Burling  v.  Alvord's  Estate,  77  Neb.  861 438,  463,  625 

Burnet's   Exrs.   v.   Burnet,  30  N.   J.  Eq.  595 57,  59,  584 

Burney  v.  Torrey,  100  Ala.  157 84 

Burns  v.  Van  Loan,  39  La.  Ann.  560 537 

Burnside  v.  Savier,  6  Or.  156 359 

Burreli  v.  Chicago  M.  &  St.  P.  Ry.  Co.,  43  Minn.  363 536 

Bursen  v.  Goodspeed,  60  111.  277 481 

Burton  v.  Williams,  63  Neb.  431 403,  405 

Burwell  v.  Cawood,  2  How.  (U.  S.)   560 350 

Bush   v.   Bush,   33   Kan.   556 920 

v.  Clark,  127  Mass.   Ill 357 

v.  De  Lano,   133  Mich.  321 125,   147 

Bush's  Estate,  In  re,  89  Neb.  334 684 

Butler  v.  Fitzgerald,  43  Neb.  192 615 

Butterick   v.   Richardson,   39   Or.   246 917,   921 

Butts  v.  Purdy,  63  Or.  169 311 

Byerly  v.  Donlin,   72   Mo.   270 252 

Byrne  v.  Hume,  84  Mich.  185 151,  347 

Byron  Reed  Co.  v.  Klabunde,  76  Neb.  103 14,  157 

c 

Caddell  v.  Palmer,  1  Clark  &  F.  372 40 

Cadman  v.  Richards,  13  Neb.  383 172,  178,  180,  182,  429,  791,  801 

Cadmus  v.  Combs,  37  N.  J.  Eq.  264 553 

62 — Pro.  Ad. 


978  TABLE    OF    CASES. 

Page 

Caffey  v.  McMichael,  64  N,  C.  507. ... . 920 

Cahill  v.  Bassett,  66  Mich.  407 499 

Gaboon  v.  Moore,  11  Vt.  604 354 

Caines  v.  De  Lacroix,  6  Wall.  (U.  S.)   719 544 

Calder  v.  Curry,  27  E.  I.  610, 556 

Caldwell  v.  Caldwell,  45  Ohio  St.  512 383 

Calhoun   v.   McKnight,   36   La.   Ann.   414 241 

Callahan  v.  Wooldridge,   171   Mass.   595 657 

Camden  v.  Plain,   91   Mo.   117.. 545 

Cameron  v.  Boyd,  4  Dana   (Ky.),  549.. 577 

v.  Cameron,   15   Wis.  1 690 

v.  Justices  Inferior  Court  Eichmond  Co.,  1  Ga.  36 765,  768 

Camp  v.  Crocker,  54  Conn.  21 50 

v.  Grant,   21    Conn.   41 571 

v.  Smith,  68  N.  C.  537 352 

Campau  v.  Gillett,  1  Mich.  416 506 

Campbell  v.  Campbell,  30  N.  J.  Eq.  415 603 

v.  Clark,  64  N.  H.  328 54,  57 

v.  Clark,   2  Doug.    (Mich.)     141 604 

v.Johnson,   41   Ohio   St.    588 785 

v.  Knights,  26  Me.  224 543,  885 

v.  Murphy,   55   N.    C.    357 616 

v.  State,   66   Md.    1 775 

Campbell,  In  re,  12  Wis.  369 675 

Campbell's  Will,  In  re,  170  N.  Y.  84 498 

Candy  v.  Hannamore,   76  Ind.  125 924 

Capps  v.   Hickman,   97  111.   429 822 

Card  v.  Deans,  84  Neb.  4 900 

Cardwell,  Guardianship  of,  55  Cal.  137 868 

Carlisle  v,  Burley,  3  Me.  250 303 

Carlson  v.  Oregon  Short  Line  E.  E.  Co.,  21  Or.  459 29 

Carlton  v.  Carlton,  40  N.  H.  14 63 

v.  Patterson,   29   N.    H.   586 149 

Carlysle  v.   Carlysle,   10  Md.  440 868 

Carow  v.  Mowatt,  2  Edw,  Ch.  (N.  Y.)  57 213 

Carpenter  v.  Carpenter,  8  Bush   (Ky.),  283 90 

v.  Hatch,   64    N.    H.    573 149 

v.  McBride,   3    Fla.    292 887 

v.  Murphy,  74  Wis.   541 429,   439 

Garriger's  Admr.  v.  Whitington's  Admr.,  26  Mo.  311 436 

Carroll  v.  Connett,  2  J.  J.  Marsh.  (Ky.)  195 762 


TABLE    OF    CASES.  979 

Page 
Carroll  v.  Bonham,  52  X.  J.  Eq.  625 79 

v.  House,  48  N.  J.  Eq.  269 140 

Carson  v.  Fears,  91  Ga.  4S2 334 

Carter  v.  Gray,  58  Ky.  411 577 

v.  Manufacturer's  Nat.  Bank,  71  Me.  448 344 

v.  Penn,  79  Ga.  747 433 

Carter,  In  re,  120  Iowa,  215 855 

Cartright  v.  Cartright,  1  Phillim.  90 90 

Carty  v.  Connelley,  91  Cal.  15 593 

Gary  v.  White,  52  N.  Y.  139 448,  459 

Carver,  In  re,  118  Cal.  73 911 

Case  v.  Haggerty,  91  Neb.  746 39 

Casey  v.  Peebles,  13  Neb.  9 796 

Casoni  v.  Jerome,  58  N.  Y.  315 784,  785 

Cassady  v.  Casey,  58  Iowa,  326 920 

Castner'a  Appeal,  88  Pa.  478 54 

Casto  v.  Murray,  49  Or.  57 286 

Catholic  Mut.  Benefit  Assn.  v.  Firnane,  50  Mich.  82 733 

Catlett  v.  Carter's  Exr.,  2  Munf .  ( Va.)  24 769 

Caufield  v.  Sullivan,  85  N.  Y.  153 39 

Caulton  v.  Pope,  84  Neb.  723 194,  260,  295 

Caylor  v.  Caylor's  Estate,  22  Ind.  App.  666 590 

Cazassa  v.  Cazassa,  92  Tenn.  373 597 

Central  Branch  U.  P.  E.  Co.  v.  Andrews,  37  Kan.  162 302 

Chadbourne  v.  Chadbourne,  9  Allen  (Mass.),  173 307 

Chaddock  v.  Haley,  81  Tex.  617 150 

Chaffin's  Will,  32  Wis.  557 88 

Chaler,  Succession  of,  39  La.  Ann.  308 213 

Chambers  v.  Jones,  72  111.  275 544 

v.  Shaw,  52  Mich.  18 42 

Chambers'  Estate,  In  re,  38  Or.  131 424,  551,  701 

Chamberlin's  Appeal,  70  Conn.  363 185,  253 

Chan  v.  City  of  South  Omaha,  85  Neb.  434 865 

Chandler  v.  Barrett,  21  La.  Ann.  58 90 

v.  Jost,  96  Ala.  596 143 

Chandler,  In  re,  87  Ala.  300 324 

Chapman  v.  Barnes,  29  111.  App.  184 450 

Chapoton  v.  Prentis,  155  Mich.  283 315,  319 

Charlick's  Estate,  11  Abb.  N.  C.  (N.  Y.)  56 580 

Charlton's  Appeal,  88  Pa.  476 335 

Chase  v.  Hoxie,  64  Kan.  320 45 


980  TABLE   OF   CASES. 


Chase  v.  Ladd,  153  Mass.   126 131 

v.  Whiting,   30   Wis.   544 526 

Cheever  v.  Ellis,  144  Mich.  477 708,  709 

Cheney   v.   Cheney,    78    Neb.   274 134 

v.  Gleason,  125  Mass.  166 288 

Chess'   Appeal,  4   Pa.   52 389 

Chess'   Appeal,   87   Pa.    362 581 

Chicago  B.  &  Q.  By.  Co.  v.  Healey,  76  Neb.  783 265,  299 

v.  Gould,  64  Iowa,  343 223,   243 

v.  Oyster,   58    Neb.    1 299 

v.  Waserman,   22   Fed.    872 733 

Chicago  K.  &  N.  By.  Co.  v.  Cook,  43  Kan.  83 540 

Chicago  B.  I.  &  Pac.  By.  Co.  v.  Hambel,  2  Neb.  Unof.  697 672 

Chick  v.  Ives,  2  Neb.  Unof.  879 39,  51,  325 

Children's  Aid  Society  v.  Loveridge,  70  N.  Y.  387 91 

Childress  v.  Bennett,  10  Ala.  751 19 

Chisolm's  Heirs  v.  Ben,  7  B.  Mon.  408 107 

Choate  v.  Arrington,  116  Mass.  552 780 

Chouteau  v.  Suydam,  2  N.  Y.  184 308 

Chrisman  v.   Chrisman,   16   Or.   127 85,   123 

Christian  v.  Evans,  5  Or.  254 794 

v.  Morris,  50  Ala.   385 355 

Christiansen    v.    Talmage    (Or.),    13S   Pac.    453 127 

Chubb  v.  Bradley,  58  Mich.  268 856 

City  of  Carondelet  v.  Desnoyer's  Admr.,  27  Mo.  36 432 

City  of  Friend  v.  Burleigh,  53  Neb.  674 294 

City  of  Horton  v.  Trompeter,  53  Kan.  150 217 

City  of  Philadelphia  v.  Davis,  1  Whart.  (Pa.)  490 604 

Clapham's  Estate,  In  re,  73  Neb.  492 156 

Clapp  v.  Fullerton,  37  N.  Y.  197 145 

v.  Inhabitants  of  Stoughton,  10  Pick.  (Mass.)  4C8 254,  259 

Clark  v.  Blackington,  110  Mass.  369 330,  333,  405 

v.  Bundy,   29   Or.   193 746 

v.  Clement,  33  N.  H.  563 409,  278,  412 

v.  Clough,  63  N.  H.  43 313 

v.  Ellis,  9   Or.   129 85,    117 

v.  Fleischman,   84   Neb.   465 46,    356 

v.  Garfield.    8    Allen    (Mass.),   427 869 

v.  Lyon,  82  Neb.  625 854 

v.  Moses,   50   Ala.   326 334 

v.  Nebraska  Savings  Bank,  50  Neb.  CG9 880 


TABLE    OF    CASES.  981 

Page 
Clark  v.  Stansburry,  49  Mo.  346 140 

v.  State,  6  Gill    &  J.   (Md.)   346 .    765 

v.  Turner,  50  Neb.  290 107,  118,  156,  448 

v.     Wilkinson,   59   Wis.   543 873 

Clarkson  v.  Hatton,   153  Mo.  47 934 

Clary  v.  Watkins,  64  Neb.  386 726 

Clausenius  v.   Clausenius,   179  111.  545 89 

Clawson  v.  Brewer,  67  N.  J.  Eq.  201 465 

Cleaver  v.   Cleaver,  39  Wis.  96 56 

Cleaves  v.  Dockray,  67  Me.  118 763 

Clement  v.  Cozart,  103  N.  C.  173 479 

Clements  v.  Eamsey  (Ky.),  4  S.  W.  311 913 

Clemmens   v.   Brillhart,   17   Neb.   325 821 

Clemens  v.   Heelan,  52  Neb.  287 611,   629 

Clendenning  v.   Clymer,   17   Ind.   155 587 

Cleveland  v.  Quilty,  128  Mass.  578 805 

Clinch,  In  re,  180  N.  Y.  300 644 

Cline  v.  Dexter,  72  Neb.  619 456 

Cline's  Will,  24  Or.   178 86 

Clotilde  v.  Lutz,  157   Mo.  439 578 

Clough  v.  Clough,  117  Mass.  83 589,  590 

Clyce  v.  Anderson,  49  Mo.   37 91 

Coat  v.  Coat,  63  111.  73 515 

Cochran  v.  Anderson,  104  Ind.  282 916 

v.  Fillians,  30  S.  C.  237 872 

Cockerel   v.   Hobson,   16   Ala.   391 462 

Cocks  v.  Haviland,  124  N.  Y.  431 709 

Coe  v.  Knights  &  Ladies  of  Security  (Neb.),  147  N.  W.  112 212 

Cog-jeshall  v.  Pelton,  7  Johns.  Ch.   (N.  Y.)   192 50 

Coggeswell  v.  Concord  &  M.  R.  R.,  68  N.  H.  192... 308 

Cohee   v.   State,   79   Neb.   811 859 

Cole  v.  Boyd,  68  Neb.  146 533,  534,  547 

Cole's  Will,  In  re,  52  Wis.  591 194 

Coleman  v.  Parker,  114  Mass.  30 580 

Coles  v.  Coles,  15  Johns.  Ch.  319 615 

Collamore   v.    Learned,    171    Mass.    99 934 

v.  Wilder,   19  Kan.   67 439 

Collins  v.  Farnsworth,  8  Blackf .  (Ind.)  575 485 

v.  Hoxie,  9  Paige   (N.  Y.),  88 55 

v.  Tillou's   Admr.,   26   Conn.    373 422 

v.  Townley,  21  N.  J.  Eq.  353 85 


982  TABLE    OF    CASES. 


Collup   v.   Smith,   29   Va.   258 98 

Colt  v.  Dubois,  7  Neb.  396 127 

Colton  v.  Field,  131  111.  398 421 

Colwell  v.  Alger,  5  Gray  (Mass.),  67 194,  774 

Columbia  Nat.  Bank  v.  German  Nat.  Bank,  56  Neb.  803 124 

Commonwealth  v.  Bryan,  8  Serg.  &  E.   (Pa.)   128 771 

v.  Coleman,   52   Pa.   468 662 

v.  Cox's   Admr.,   36   Pa.    442 873 

v.  Forney,  2  Watts  &  S.   (Pa.)   358 782 

v.  Fretz,   4   Pa.   347 767,  768 

v.  Moltz,  10  Pa.  327 767 

v.  Kogers,  53  Pa.  470 764 

v.  Wenrick,  8  Watts   (Pa.),  159 767,  770 

Commonwealth's  Appeal,   128  Pa.   603 662 

Compton  v.  Pruitt,  88  Ind.  171 604 

Comstock  v.  Hadlyme,  8   Conn.  254 84 

Conant  v.  Stratton,  107  Mass.  474 193 

Conant's  Estate,  In  re,  43  Or.  535 431 

Cone  v.  Dunham,  59  Conn.  145 438 

Conger  v.   Cook,  56  Iowa,   117 484 

Connecticut  Mut.  Life  Ins.  Co.  v.  Schurmier   (Minn.),  147  N.  W. 

459     823 

Connell  v.  Moore,  70  Kan.  88 823 

Connell,  In  re,  170  N.  Y.  423 641 

Connolly's  Estate,  In  re,  73  Cal.  423 775 

Connor,  In  re,  93  Neb.  118 823 

v.  Root,  11  Colo.  183 493 

v.  Skaggs,  213   Mo.   334 88 

Conover's  Exrs.  v.  Conover,  1  N.  J.  Eq.  403 273 

Conroy  v.   Hallowell,   94   Neb.   774 8 

Conrad  v.  Douglas,  59  Minn.  498 607 

Conser's  Estate,  In  re,  40  Or.  142 273,  681,  682 

Continental  Building  &  Loan  Assn.  v.  Mills,  44  Neb.  136 800 

Continental  Trust  Co.  v.  Peterson,  76  Neb.  411 680 

Converse  v.  Starr,  23  Ohio  St.  491 118 

Cook  v.  Cook  (N.  J.)  47  Atl.  732 325 

v.  Dawson,  29  Beav.  126 555 

v.  Sexton,  79  N.  C.  305 277 

v.  Winchester,  81  Mich.  581 64 

Cook,  In  re,  137  Cal.  184 484,  485 

Cooke  v.  Cooke,  29  Md.  538 303 


TABLE    OF    CASES.  983 


Cooke  v.  Meeker,  36  N.  Y.  15 581 

Cool's  Exrs.  v.  Higgins,  29  N.  J.  Eq,  308 878 

Cooley  v.  Jansen,  54  Neb.  33 628 

Coon  v.  Cook,  6  Ind.  268. 536 

Cooper  v.  Cooper,  9  N.  J.  Eq.  655 916 

v.  McNamara,    92    Iowa,    243 821 

v.  Williams,   109   Ind.   270 353 

Coopwood  v.  Wallace,  12  Ala.  790 348 

Copp  v.  Copp,  20  N.  H.  284 847 

v.  Hersey,  31  N.  H.  317 674 

Oorbitt  v.  Corbitt,  54  N.  C.  117 55 

Corey  v.  Hyde,  49  Cal.  470 389,  392 

v.  Plummer,  48  Neb.  481 624,  628 

Corliss  v.  McLagin,  29  Me.  115 261 

Cornelius  v.  Miles  (Ky.),  53  S.  W.  517 453 

Cornthwaite  v.  First  Nat.  Bank  of  Eockville,  57  Ind.  268 355 

Corwine  v.  Corwine,  24  N.  J.  Eq.  579 577 

Costello,  In  re,  189  N.  Y.  288 661 

Cotton  v.  State,  64  Ind.  573 929 

Courtright  v.  Courtright,  40  Mich.  633 821 

Covington  v.  Leak,  65  N.  C.  594 859,  911 

Cowdry,  In  re,  77  Vt.  539 84,  147 

Cowgill  v.  Linville,  20  Mo.  App.  138 334 

Cowherd  v.  Kitchen,  57  Neb.  426 759,  790,  791 

Cowie  v.  Strohmeyer,  150  Wis.  401 704 

Cowles  v.  Cowles,  8  111.  435 826 

Cox  v.  Chalk,  37  Md.  569 237 

Y.  Cox,  101  Mo.   168 126 

v.  Ellsworth,   18   Neb.  669 212 

v.  John,  32  Ohio  St.  538 343 

v.  Yeazel,  49  Neb.  343. 320,  404 

Graf  ton  v.  Beal,  1  Ga.  322 251 

Craig  v,  Anderson,  3  Neb.  Unof.  638 347,  422 

v.  Jennings,  31  Ohio  St.  84 288 

v.  Leslie,  3  Wheat.  (U.  S.)   563 782 

Cramer  v.  Corbis,  31  111.  259 839 

Crandall  v.  Baker,  8  N.  D.  263 44 

v.  Nichols,  93  Neb.  80 45 

CrandalPs  Appeal,  63  Conn.  365, 139 

Crane  v.  Stickles,  15  Vt.  252 318 

Crause  v.  Peterson,  130  Cal.  169 328 

Cravens  v.  Logan,  7  Ark.  102 354 


984  TABLE   OF   CASES. 

Page 

Crawford  v.  McCarty,  159  N.  Y.  514 576 

v.  Wist,  26  Or.  596 794 

Crawford's  Estate,  51  Or.  76 794 

Creagh  v.  Tunstall,  98  Ala.  249 857 

Creamer  v.  Ingalls,  8&  Wis.  112 756 

Creighton  v.  Murphy,  8  Neb.  349 405,  413,  442 

Creighton's  Estate,  In  re,  12  Neb.  280 747 

Creighton's  Estate,  In  re,  88  Neb.  167 20,  21,  802 

Creighton's  Estate,  In  re,  91  Neb.  654 51,791,  803 

Creswell  v.  Slack,  68  Iowa,  110 459 

Crispin  v.  Winkleman,  57  Iowa,  523 288 

Crombie  v.  Engel,  19  N.  J.  Eq.  83 711 

Crone's  Appeal,  103  Pa.  571 556 

Crocker  v.  Smith,  47  Neb.  102 846,  847 

Crosby's  Estate,  55  Cal.  574 482 

Cross  v.  Baskett,  17  Or.  82 708 

v.  White,  80  Minn.  413 930 

Crouch  v.  Davis'  Exrs.  23  Gratt.  (Va.)  62 584 

v.  Eveleth,  12  Mass.  502 544 

v.  Puryear,  1  Band.  (Va.)  258 603 

Crowninshield  v.  Crowninshield,  2  Gray  (Mass.),  524 90,  123 

Cudney  v.  Cudney,  68  N.  Y.  152 134 

Culbertson  v.  Culbertson,  68  Ark.  405 597 

Cullen  v.  O'Hara,  4  Mich.  132 289,  303 

Culver  v.  Hardenbergh,  37  Minn.  225 518,  538 

v.  Harper,  27  Ohio  St.  464 601 

Culver's  Estate,  In  re,  153  Iowa,  461 662 

Cummings  v.  Plummer,  94  Ind.  403 54 

Cummings'  Estate,  153  Pa.  397 262 

Cunningham  v.  Anderson,  107  Mo.  371 502 

v.  Cunningham,  80  Minn.  180 64 

Cunningham,  In  re,  30  Minn.  169 97 

Curran  v.  State,  53  Or.  154 809 

Currier  v.  Currier,  70  N.  H.  149 586 

Curtis  v.  Farmers'  Nat.  Bank,  39  Ohio  St.  359 355 

v.  Price,  12  Ves.  193 605 

Gushing  v.  Hale,  8  Vt.  38 836 

Cusic  v.  Byrne,  1  Cal.  App.  643 ' 672 

Cusick  v.  Hamer,  25  Or.  473 216,  217 

Cutter  v.  Butler,  25  N.  H.  343 102 

v.  Meeker,  71  Neb.  782 500 

v.  Waddingham,  23  Mo.  206 728 


TABLE   OF   CASES.  985 

D 

Page 

Dabney  v.  Cotterel's  Admx.,  9  Gratt.  (Va.)  572 53 

Dakota  Co.  v.  Bartlett,  67  Neb.  62 712 

Dale  v.  Dale,  38  N.  J.  Eq.  274 140,  143 

Dalrymple  v.  Gamble,  66  Md.  298 235,  409 

Damarell  v.  Walker,  2  Kedf.  Sur.  (N.  Y.)  198 945 

Damkroeger  v.  James  (Neb.),  146  N.  W.  936 465 

Dampier  v.  McColl,  78  Ga.  607 823 

v.  St.  Paul  Trust  Co.,  46  Minn.  526 445 

Danforth  v.  Smith,  23  Vt.  247 601 

Daniel  v.  Smith,  75  Cal.  548 589 

Daniels  v.  Brown,  38  N.  H.  454 290 

Darden  v.  Wyatt,  15  Ga.  414 823 

Dardis'  Will,  In  re,  135  Wis.  457 128 

Darland  v.  Taylor,  52  Iowa,  503 589 

Darley  v.  Darley,  3  Brad.  Sur.  (N.  Y.)  508 136 

Dart's  Will,  In  re,  34  Or.  56 806 

Davenport  v.  First  Congregational  Society,  33  Wis.  387 308 

v.  Sargeant,  63  N.  H.  538 578 

David  Adler  &  Sons  Clothing  Co.  v.  Hellman,  55  Neb.  266 600 

Davis  v.  Clark,  58  Kan.  54 272 

v.  Davis,  27  Neb.  859 798 

v.  Davis,  11   Ohio  St.  386 18 

v.  Estey,  8  Pick.  (Mass.)  875 414 

v.  French,  20  Mo.  21 348 

v.  Hapgood,  54  N.  C.  253 534 

v.  Hoover,  112  Ind.  423 327 

v.  Kendall,  161  Ind.  412 473,  475,  494 

Davis'  Appeal,  60  Pa.  118 865 

Davis,  In  re,  62  Mo.  453 910 

Davidson  v.  Bates,  11  Ind.  391 895 

v.  Davidson,  70  Neb.  584 124 

Davoue  v.  Fanning,  2  Johns.  Ch.  (N.  Y.)  252 596 

Dawes  v.  Boylsron,  9  Mass.  337 19,  417 

v.  Head,  3  Pick.  (Mass.)   128 414 

v.  Shed,  15  Mass.  6 .  438 

Dawson  v.  Dawson,  35  Ohio  St.  443 770 

v.  Helms,  30  Minn.  107 518 

Day  v.  Day,  3  N.  J.  Eq.  549 144 

v.  Graham,  97  Mo.  398 433 

v.  Holland,  15  Or.  364 802 


986  TABLE    OF    CASES. 

Page 

D'Avignon,  In  re,  12  Colo.  App.  489 133 

Dean  v.  Negley,  41  Pa.  312 92 

v.  Portis,  11  Ala.  104 . .  769 

De  Bernal's  Estate,  In  re,  (Cal.)  131  Pac.  375 554 

De  Bow  v.  Wollenberg,  52  Or.  434 296 

Decker  v.  Decker,  121  111.  341 53,  586 

v.  Feisley,  146  Ind.  16 915 

Deckernback  v.  Deckernback,  65  Or.  165 127 

Decuir,  Succession  of,  22  La.  Ann.  372 349 

v.  Succession  of,  23  La.  Ann.  166 238 

Deering  v.  Adams,  34  Me.  41 790 

v.  Kerf  oot,  89  Va.  491. .. 553 

Def ord  v.  Mercer,  25  Iowa,  118 . 880 

Dekay  v.  Darrah,  14  N.  J.  L.  288 436 

Dekum's  Estate,  In  re,  28  Or.  99 276,  281 

Dellafield  v.  Parish,  25  N.  Y.  35 83,  142 

v.  White,  19  Abb.  N.  C.  (N.  Y.)  104 872 

Den  d.  Delaplaine  v.  Searing,  1  N.  J.  L.  340 728 

Den  d.  Pierson  v.  Hart.  3  N.  J.  L.  73 728 

Dennick  v.  Railroad  Company,  103  U.  S.  11 300 

Denning  v.  Butcher,  91  Iowa,  425 149,  150 

Dennis,  In  re,  Estate  of,  67  Iowa,  110 280 

Densine  v.  Cornwell,  11  Serg.  &  R.  (Pa.)  374 858 

Denson  v.  Beazley,  34  Tex.  191 89 

Denton  v.  Nanny,  8  Barb.  (N.  Y.)  618 602 

Deobold  v.  Opperman,  11  N.  Y.  231 352,  784 

Derby  v.  Derby,  4  R.  L  414 50 

Desribes  v.  Wilmer,  69  Ala.  25 822 

Dessert,  In  re,  154  Wis.  320 642 

Devlin  v.  Commonwealth,  101  Pa.  273. 211 

Devol  v.  Dye,  121  Ind.  121 589 

Devries  v.  Devries,  5  Neb.  Unof.  179 442 

Dew  v.  Kuehn,  64  Wis.  300 42 

Dexter  v.  Cranston,  41  Mich.  448 509 

Dey  v.  Codman,  39  N.  J.  Eq.  258 688 

Dibble  v.  Dibble,  8  Ind.  307 846 

Dick  v.  Kendall,  6  Or.  166 293 

Dickerson  v.  Dickerson,  31  N.  J.  Eq.  652 845 

Dickinson  v.  Aldrich,  79  Neb.  198 98 

v.  Columbia  State  Bank,  70  Neb.  260 456 

v.  Dickinson,   124  HI.  483 540,  541 


TABLE    OF    CASES.  987 

Page 

Dickinson's  Estate,  In  re,  148  Pa.  142 749 

Dickman  v.  Burhauser,  16  Neb.  686 626 

Dietrichs  v.  Lincoln  &  N.  W.  Ky.  Co.,  14  Neb.  356 879 

Dillman  v.  McDaniel,  22  111.  276 85 

Pilworth's  Appeal,  108  Pa.  92 682 

Dingley  v.  Buffum,  57  Me.  381 261 

Disher  v.  Disher,  45  Neb.  100 45,  622 

Divine  v.  Mitchum,  8  B.  Mon.  (Ky.)  488 603 

Dix  v.  Morris,  66  Mo.  514 352 

Dixon  v.  Buel,  21  111.  203 422 

Dobbins  v.  Half  acre,  52  Miss.  561 769 

Dobson  v.  Dobson,  7  Neb.  296 800 

Dodd  v.  Anderson,  197  N.  Y.  496 156 

Dodge,  Appeal  of,  106  Pa.  216 55 

v.  Manning,  1  N.  Y.  298 576 

v.  Stevens,  105  N.  Y.  985 877 

Dodge  County  v.  Burns,  89  Neb.  534 643,  662,  666 

Dodson  v.  Dodson,  152  Mich.  586 61 

Doe  d.  Cholmondley  v.  Maxey,  12  East,  889 99 

Clements  v.  Henderson,  4  Ga.  148 526,  542 

Hamilton  v.  Hardy,  52  Ala.  291 486 

Hick  v.  Dring,  2  Maule  &  S.  448 53 

Doherty  v.  O'Callaghan,  157  Mass.  90 149 

Donald  v.  Nesbit,  89  Ga.  290 607 

v.  Portis,  42  Ala.  29 720 

Donaldson  v.  Hall,  106  Minn.  502 103 

Donges'  Estate,  In  re,  104  Wis.  397 733 

Donnelley  v.  Donnelley's  Heirs,  8  B.  Mon.  (Ky.)  113 606 

Dooley  v.  Bell,  87  Ga.  74 538 

Doolittle  v.  Lewis,  7  Johns.  Ch.  (N.  Y.)  45 406 

Dorah's  Admr.  v.  Dorah'3  Exr.,  4  Ohio  St.  92 278 

Dornetizer  v.  German  Sav.  Bank,  23  Wash.  1C2 900 

Dorr,  In  re,  Petition  of,  Walk.  Ch.  (Mich.)    145 865 

Dortch  v.  Dortch,  71  N.  C.  224 585 

Doty  v.  Hubbard,  55  Vt.  278 887 

v.  Sumner,  12  Neb.  378 225 

Dougherty  v.  Kubat,  67  Neb.  269 738 

Douglas  v.  Bennet,  51  Miss.  680 920 

v.  Cameron,  47  Neb.  358 726,  727 

v.  Ferris,  138  N.  Y.  192 917,  919,  928 

Y.  Kessler,  57  Iowa,  63 873 


988  TABLE    OF    CASES. 

Page 

Douglas  v.  Parker,  84  Me.  522 264 

Douglas'  Appeal,  82  Pa.  169 910 

Douglas  County  v.  Kountz,  84  Neb.  596 644,  661,  667 

Dove  v.  Torr,  128  Mass.  38 56 

Dovey  v.  Dovey,  95  Neb.  324 625 

Dow  v.  Dow,  36  Me.  211 596 

Dowling  v.  Feeley,  72  Ga.  557 779 

Downing's  Will,  In  re,  118  Wis.  581 84,  149 

Drake  v.  Drake,  82  N.  C.  443 694 

Draper  v.  Joiner,  9  Humph.  (Tenn.)  612 969 

Draper's  Estate,  In  re,  215  Pa.  314 84,  147 

Dray  v.  Bloch,  29  Or.  351 293,  359,  708 

Dredla  v.  Baache,  60  Neb.  655 9,  428,  429,  803,  808 

Drew  v.  Haggerty,  81  Me.  231 589 

v.  Wakefield,  54  Me.  296 58 

Drew's  Appeal,  58  N.  H.  319 213 

Drexel  v.  Rochester  Loan  Co.,  65  Neb.  231 798 

Drinkwater  v.  Drinkwater,  4  Mass.  254 299 

Drummond  v.  Jones,  44  N.  J.  Eq.  53 328 

Drury  v.  Connell,  177  HI.  43 64 

Dubuch  v.  Wildermuth,  3  La.  Ann.  407 422 

Dudley  v.  Gates,  124  Mich.  440 126,  150 

Duffin  v.  Abbott,  48  111.  17 536 

Duffy  v.  State,  60  Neb.  412 4 

Duke's  Admrs.  v.  Duke's  Distributees,  26  Ala.  673 680 

Duncan  v.  Inhabitants  of  Franklin,  43  N.  J.  Eq.  143 586 

Dundas  v.  Carson,  27  Neb.  634 265,  323 

v.  Chrisman,  25  Neb.  495 443,  474 

Dunham  v.  Siglin,  39  Or.  295 436 

Dunham's  Appeal,  27  Conn.  193 88 

Dunlap  v.  Newman,  47  Ala.  429 352 

Dunn,  Ex  parte,  63  N.  C.  137 282 

v.  Sargent,  101  Mass.  236 259 

Dunnell  v.  Municipal  Court,  9  E.  I.  189 675 

Durfee  v.  Justus,  92  Mich.  211 785 

Durie  v.  Blauvelt,  48  N.  J.  L.  114 412 

Durland  v.  Seller,  27  Neb.  32 627 

Durnford  v.  De  Gruys,  8  Mart.  (La.)  220 513 

Dutcher  v.  Culver,  23  Minn.  415 802 

Dwight  v.  Simon,  4  La.  Ann.  490 239 

Dwyer  v.  Kalteyer,  68  Tex.  454 686 


TABLE    OF    CASES.  989 

Page 

Dye  v.  Kerr,  15  Barb.  (N.  Y.)  444 449 

v.  Cornell,   4   Pa.   359 894 

E 

Earl  v.  Dresser,  80  Ind.  11 844,  849,  872 

Earle   v.   Grove,   92   Mich.   285 568 

Eastis  v.  Montgomery,  93  Ala.  293 140 

Easton  v.  Courtright,  84  Mo.  27 362 

Eaton  v.  Cole,  10  Me.  137 309 

Eberts  v.  Eberts,  42  Mich.  404 57 

v.  Eberts,    55    Pa.    110 918 

Eckert  v.  Flowry,  43  Pa.  46 • 942 

Eckford  v.  De  Kay,  8  Paige   (N.  Y.),  89 920 

Edds,  In   re,   137   Mass.   346 945 

Eddy's  Case,  32  N.  J.  Eq.  781 86 

Edgerton  v.  Edgerton,  17  N.  J.  Eq.  419 441,  590 

Edmunds'  Admr.  v.  Scott,  78  Va.  720 335,  771 

Edney  v.  Baum,  59  Neb.  147 799 

v.  Baum,  70  Neb.   159 329,  330 

Edwards  v.  Cobb,  95  N.  C.  4 238 

v.  Eainer's  Exr.,  17  Pa.  597 260 

v.  Russell,  21  Wend.   (N.  Y.)   63 10 

Eisenbise  v.  Eisenbise,  4  Watts  (Pa.),  134 303 

Ela  v.   Ela,   84   Me.   423 928 

Elgutter  v.  Missouri  Pac.  Ey.  Co.,  53  Neb.  748 222,  231 

Elizalde  v.  Murphy,  163  Cal.   681 764 

Ellicott  v.  Chamberlin,  38  N.  J.  Eq.  694 187 

Elliott  v.  Elliott,  3  Neb.  Unof .  832 61,  82 

v.  Garvin,    166    Fed.    278 458 

v.  Sparrell,  114  Mass.  404 685 

Ellis  v.  Aldrich,  70  N.  H.  219 585,  586 

v.  Gary,   74  Wis.   176 448,  466 

v.  Scott,   75  N.  C.   108 850 

v.  Soper,  11  Iowa,  631 855,  912,  924 

v.  Witty,  63  Miss.  117 226 

Ellsworth  v.  Hall,  48  Mich.  407 879 

Ellwood  v.  Diefendorf,  5  Barb.   (N.  Y.)   398 562 

Elting  v.  Biggsville  Nat.  Bank,  173  111.  368 545 

Elwell  v.  Universalist  Church,  63  Tex.  220 239 

Emerson  v.  Bowers,  14  N.  Y.  449 213,  238 

v.  White,  29  N.  H.  482 748 


990  TABLE    OF    CASES. 

Page 

Emery  v.  Bachelder,  78  Me.  333 586 

v.  Clough,  63   N.   H.   552 589 

v.  Darling,   50  Ohio   St.   260 290 

Engles  v.  Morgenstern,  85  Neb.  51 807 

English's  Exrs.  v.  McNair's  Admr.,  34  Ala.  40 185 

Engstad  v.  Syverson,  73  Minn.   188 785 

Ensey  v.  Hines,  30  Kan.  704 450 

Entwhistle  v.  Meikel,   180  111.  9 117 

Erben  v.  Lorillard,  19  N.  Y.  279 467 

Erickson  v.  Nyblom,  78  Neb.  642 473 

Erwin  v.  Turner,  6  Ark.  14 438 

Estabrook  v.  Hapgood,  10  Mass.  313 458 

Estes  v.  Wilcox,  67  N.  Y.  264 314 

Esty  v.  Clark,  101  Mass.  36 55 

Eubank  v.   Clark,  78  Ala.   73 684 

Evans  v.  Buchanan,  13  Ind.  438 236 

Evans'  Appeal,  51   Conn.  435 718 

Everson  v.  Hum,  89  Neb.  716 127 

Ev.ertson  v.  Tappen,  5  Johns.  Ch.   (N.  Y.)   498 687 

Evertz  v.  Stiger,  6  Or.  55 703 

Ewen  v.  Hitchcock  (Iowa),  146  N.  W.  1 321 

Ewing  v.  Griswold,  43  Vt.  400 439 

v.  Mclntyre,   141   Mich.   506 107 

Ewing's  Heirs  v.  Handley's  Exrs.,  4  Litt.  (Ky.)  346 54 

Eyre  v.  Shaftsbury,  2  P.  Wms.  102 822 

F 

Fairbanks,  Morse  &  Co.  v.  Welshans,  55  Neb.  3C2 357 

Fairfield  v.  Gulliver,  49  Me.  360 14 

Faran  v.  Robinson,  17  Ohio  St.  242 478 

Farmer  v.  Sprague,  57  "Wis.  324 150 

Farnum  v.  Loomis,  2  Or.  30 605 

Farrar  v.  Haselden,  9  Rich.  Eq.  (S.  C.)  331 567 

Farrell  v.  Farrell,  1  Duv.   (Ky.)   203 140 

Farris  v.  Hayes,  9  Or.  81 603 

Farrow  v.  Nevin,  44  Or.  496 790,  807,  809 

Farwell  v.  Steen,  46  Vt.  678 769,  913 

Fauber  v.  Keim,  85  Neb.  217 577 

v.  Keim,  88  Neb.  379 756 

Faulk  v.  Dashiell,   62   Tex.   642 376 

Fearing  v.  Jones,  149  Mass.  12 589 


TABLE    OF    CASES.  991 

Page 

Feaster  v.  Eagan,  135  Iowa,  633 326 

Fecht  v.  Hinze,  162  Mich.  52 578 

Feller  v.  Feller,  40  Or.  76 811,  813,  817 

Fellers  v.  Fellers,  54   Neb.   694 607 

Fellows  v.  Allen,  60  N.  H.  439 95,  99 

v.  Little,   46  X.   H.   27 596 

Felton  v.  Sowles,  57  Vt.  382 189,  792 

Fennell  v.  Fennell,  80  Kan.   730 722 

v.  Henry,   70   Ala.   484 597 

Fenton  v.  Keed,  4  Johns.  (N.  Y.)  52 606 

Fergus  v.  Schaible,  91  Neb.  180 719 

Ferguson  v.  Herr,  64  Neb.   649 945 

v.  Morris,   67   Ala.   389 413 

v.  Scott,  49  Miss.  500 428 

v.  Stuart's   Exrs.,   14   Ohio,   140 55 

Ferguson's  Admr.  v.  Carson's  Admr.,  86  Mo.  673 791 

Ferrin  v.  Merrick,  41  N.  Y.  315 446 

Ferris  v.  Neville,  127  Mich.  442 66 

Ferry  v.  Campbell,  110  Iowa,  290 637,  662 

Fetrow's  Exrs.  v.  Fetrow,  50  Pa.  253 260 

Field  v.  Andrada,  106  Cal.  107 314 

v.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150 230,  865 

Fifield  v.  Sperry,  20  N.  H.  338, 301 

Filley  v.  Phelps,  18  Conn.  294 356 

Finch  v.  Sink,  46  111.  169 490,  492 

Findlay  v.  Chicago  &  G.  T.  E.  Co.,  106  Mich.  700 218 

v.  Smith,  6  Munf.   (Va.)    134 603 

Finley  v.  Taylor,  97  Iowa,  420 447 

Finnegan  v.  Finnegan,   125  Ind.  263 319 

First  Nat.  Bank  v.  Balcom,  25  Conn.  351 588 

v.  Brenneman's  Exrs.,  114  Pa.  315 351 

v.  How,   28   Minn.    150 769 

v.  McCleneghan,    83    Neb.    706 761 

v.  Pilger,   78   Neb.   168 533 

v.  Reese,  64  Neb.  292 625,  627 

Fisher  v.  Bush,  131  Ind.  315 545 

v.  Fisher,  80  Neb.   145 53 

v.  Fisher,  90  Neb.   145 47 

v.  Kountz,   110  Iowa,   498 716 

Fisher's  Estate,  In  re,  158  Mich.  1 704 

Fisk  v.  Kellogg,  3  Or.  503 480,  482,  483,  540 


992  TABLE   OF   CASES. 

Page 

Fitch  v.  Martin,  74  Neb.  538 453,  454 

v.  Martin,  82  Neb.  ]24 441,  453,  454 

v.  Miller,  20  Cal.  352 878 

Fitzgerald  v.  Paisley,  ]  10  Iowa,  98 695 

Fitzgerald's  Estate  v.  First  National.  Bank,  64  Neb.  260.  .438,  441,  470 

v.  Union  Savings  Bank,  65  Neb.  97 442,  443,  803 

Fitzgerald's  Estate,  In  re,  59  Wis.  508 687 

Fitzhugh's  Exrs.  v.  Fitzhugh,  11  Gratt.   (Va.)   300 445 

Fitzpatrick  v.  Flannagan,   106  U.  S.  648 357 

Flanders  v.  Lane,  54  N.  H.  390 706 

Flannagan  v.  Howard,  200  111.  296 732 

Fleming  v.  Bale,  23  Kan.  88 492 

Fletcher  v.  Fletcher,  83  Neb.  156.  ..41,  273,  279,  280,  281,  627,  690,  740 

v.  Holmes,  40  Me.  364 314 

v.  Livingston,   123  Mass.  388 495 

Fletcher,  Succession  of,  11  La.  Ann.  60 730 

Fletcher's  Admr.  v.  Sanders,  7  Dana  (Ky.),  345 409,  779 

Flintham's  Appeal,  11  Serg.  &  K.  (Pa.)  15 446 

Florsheim  v.  Holt,  32  La.  Ann.  133 550 

Floyd  v.  Carow,  88  N.  Y.  560 58 

Flynn  v.  Chicago  &  G.  W.  E.  Co.  (Iowa),  141  N.  W.  401 330 

Fogg,  In  re,  105  Me.  480 722 

Foley  v.  Brocksmit,   119   Iowa,   457 445,  703 

v.  Hamilton,  89  Iowa,  686 762 

v.  Kane,   53   Iowa,  64 512 

v.  McDonald,  46  Miss.   238 498 

Foltz  v.  Prouse,  17  111.  487 236 

Fonda  v.  Van  Horn,  18  Wend.  (N.  Y.)  631 822 

Fontaine  v.  Boatman's  Savings  Institute,  57  Mo.  552 606 

Forbes  v.  Sweesy,  8  Neb.  250 605 

Ford  v.  Livingston,  70  Hun  (N.  Y.),  178 265 

Forney's  Estate,  161  Pa.  209 95 

Forse  &  Hembling's  Case,  4  Coke,  60b 101 

Forster  v.  Fuller,  6  Mass.  58 354 

Fort  v.  Crook,  3  Neb.  Unof.  12 636 

Forward  v.  Forward,  6  Allen  (Mass.),  494 689 

Forwood  v.  Forwood,  86  Ky.  114 715 

Foster  v.  Davis,  46  Mo.  268 353 

T.  Fifield,  20  Pick.  (Mass.)   67 258 

v.  Foster,  36  N.  H.  437 279 

v.  Murphy,  76  Neb.  576 591,  792 


TABLE    OF    CASES.  993 

Page 

Foster  v.   Thomas,   21   Conn.   285 513 

v.  Young,    27    Iowa,    27 877 

Foster's  Appeal,  74  Pa.  391 363 

Foteaux  v.  Le  Page,  6  Iowa,  123 856,  913 

Foust  v.  Chamblee's  Admr.,  51  Ala.  75 924 

Fox,  In  re,  92  N.  Y.  93 570 

v.  Davis,    113    Mass.    259 715 

v.  Kerper,  51  Ind.  148 850 

v.  Minor,  32   Cal.   Ill 859 

v.  Wills,   25   Wis.   846 867 

Frank  v.  Shipley,  22  Or.   199 83 

Frankenf eld's  Appeal,  102  Pa.  589 864 

Franklin  v.  Osgood,  2  Johns.  Ch.  (N.  Y.)   19 325 

Franks  v.   Chapman,  61   Tex.  576 166 

Fraser  v.  Jennison,  42  Mich.  320 88,  131,  184 

Frawley  v.  Cosgrove,  83  Wis.  444 756 

Frazier  v.  Littleton,  100  Va.  9 557 

v.  Steenrod,  7  Iowa,  339 511,  543 

Freazier  v.  Jeakins,  64  Kan.  615 . 900 

Frederickson's  Estate,  In  re,  83  Neb.  18 132,  139 

Free  v.  Stuart,  39  Neb.  320 261 

Freeman  r.  Foss,   145   Mass.  361 449,  496 

v.  Washtenaw  Probate  Judge,  79  Mich.  390 279,  381 

Fremont,  E.  &  M.  V.  K.  Co.  v.  Setright,  34  Neb.  253 152 

French  v.  Currier,  47  N.  H.  88 870 

v.  Hoyt,  6  N.  H.  370 ;.  490 

v.  Strumberg,  52  Tex.  92 596 

v.  Vredenburg,   105   Pa.   10 555 

Freto  v.  Brown,  4  Mass.  675 820 

Fretwell  v.  McLemore,  52   Ala.   124 418 

Freud's  Estate,  In  re,  73  Cal.  555 170 

Friedlander  v.  Eyder,  30  Neb.  783 261 

Fritz  v.  Fritz,  93  Iowa,  27 437 

Froebich  v.  Lane,  45  Or.  13 18,  164,  577,  708.  750 

Frost  v.  Wingate,  73  N.  H.  535 561 

v.  Winston,  32   Mo.  489 869 

Frothingham  v.  Shaw,  175  Mass.  59 644 

Frothingham,  In  re,  75  N.  J.  Eq.  205 96 

Fry  v.  Evans,  8  Wend.  (N.  Y.)   539 353 

Frye  v.  Crockett,  77  Me.  157 763 

Fudge  v.  Fudge,  23  Kan.  426 492 

63 — Pro.  Ad. 


994  TABLE    OF    CASES. 

Page 

Fudge  v.    State,  3  Gill  &  J.  (Md.)  114 783 

Fulcher  v.   Commonwealth,   3  J.  J.  Marsh.   (Ky.)    592 772 

Fuller  v.   Cushman,   170  Mass.   286 676 

v.  Hager,  47  Or.  242 530,  532,  885,  896 

v.  McEwen,  17  Ohio  St.  238 576 

Fulton  v.  Freeland,  219  Mo.  449 89,  132 

v.  Ryan,  33   Neb.  456 802 

Furgeson  v.  Jones,  17  Or.  204 937,  945 

6 

Gafney'«  Estate,  146  Pa.  49 447 

Gage  Y.  Ward,  25  Me.  101 605 

Gager  v.  Henry,  5  Saw.  237 896 

v.  Prout,  48  Ohio  St.  89 424,  494 

Gaines  v.  Chew,  2  How.  (U.  S.)  641 162 

v.  Green  Pond  Iron  Min.  Co.,  33  N.  J.  Eq.  603 622 

v.  Hennen,  24   How.    (U.   S.)    533 170 

Gallagher  v.  Smiley,  28  Neb.  189 623,  624 

Gallagher's  Appeal,  48  Pa.   123 576,  577 

Galloway  v.  McPherson's  Estate,  67  Mich.  546 446 

Gandolfo  v.  Walker,   15   Ohio  St.  251 772 

Gannon's  Estate,  In  re,  64  Neb.  220 796 

Gano  v.  Fisk,  43  Ohio  St.  462 588,  589 

Ganser  v.  Ganser,  83  Minn.  195 778 

Garber  v.  Commonwealth,  7  Pa.  265 784 

Gardelo  v.  Kloke,  36  Neb.  493 390 

Gardner  v.  Carter,  74  N.  H.  507 644 

v.  Estate  of  Callaghan,  61  Wis.  91 438 

v.  Gardner,  17  R.  I.  751 318 

v.  Gillihan,  20  Or.  601 293,  359 

v.  Heyer,  2  Paige  (N.  Y.),  11 55 

v.  Moss,   123  Ky.   334 156 

Garner  v.  Tucker,  61  Mo.  427 526 

v.  Wood,   71  Md.   37 745 

Garnsey  v.  County  Court,  33  Or.  205 790,  807 

Garrett  v.  Bruner,  59  Ala.  513 498 

Garrigus  v.  Ellis,  95  Ind.  598 861 

Garrison  v.  Cox,  95  N.  C.  253 242 

Garthwaite's  Exr.  v.  Lewis,  25  N.  J.  Eq.  351 59,  583 

Garvin's  Admr.  v.  Williams,  44  Mo.  465 134 

Gaster  v.  Caster's  Estate,  90  Neb.  529 41,  724 


TABLE    OF    CASES.  995 

Page 

Gaster  v.  Gaster's  Estate,  92  Neb.  6 714 

Gaston  v.  Portland,  48  Or.  85 811,  817 

Gates  v.  Cole,  137  Iowa,  613 123 

v.  McClenehan,  124  Or.  593 348 

Gatch  v.  Simpton,  40  Or.  96 272,  710,  711 

Gaurus  v.  Davis,  234  111.  811 133 

Gavett  v.  Moulton,  119  Wis.  35 105 

Gavin  v.  Graydon,  41  Ind.  559 500 

Gay  v.  Gillilan,  92  Mo.  264 134 

v.  Minot,  3  Gush.  (Mass.)  352 332 

Gaylord  v.  Stebbins,  4  Kan.  42 887 

Geiger  v.  Bitzel,  89  Ohio  St.  85 722 

v.  Keigler,  9  S.  C.  426 307 

Gelston  v.  Shields,  16  Hun  (N.  Y.),  143 55 

Genau  v.  Abbott,  68  Neb.  117 17 

v.  Roderick,  4  Neb.  Unof.  136 2 

Gentry  v.  Bearss,  82  Neb.  786 866,  867 

Gerber  v.  Bauerline,  17  Or.  115 864 

German  v.  German,  27  Pa.  116 54 

Gerrard  v.  Johnson,  12  Ind.  637 490 

Gerrish  v.  Gerrish,  8  Or.  351 61,  735 

Gerry  v.  Stinson,  60  Me.  186 601 

Geyer  v.  Wentzel,  68  Pa.  84 58 

Gibbs  v.  Shaw,  17  Wis.  204 290 

Gibson  v.  Pitts,  65  N.  C.  155 483 

v.  Roll,  30  111.  172 488,  490 

v.  Roll,  27  111.  88 487 

Gihon,  In  re,  169  N.  Y.  443 657 

Gilbert  v.  Guptil,  34  111.  112 869,  921 

Gilbert's  Appeal,  78  Pa.  286 353 

Gilbert's  Estate,  In  re,  39  Hun  (N.  Y.),  61 682 

Gilbert's  Estate,  In  re,  104  N.  Y.  200 791 

Gilchrist  v.  Rea,  9  Paige  (N.  Y.),  66 470 

Gill,  Goods  of,  1  Hagg.  Ecc.  341 223 

Gillette  v.  Morrison,  9  Neb.  395 452,  454 

Gillilan  v.  Oakes,  1  Neb.  Unof.  55 309,  390 

Gilkey  v.  Hamilton,  22  Mich.  283 286 

Gilkham,  In  re,  61  N.  J.  Eq.  715 91 

Gilmore  v.  Burch,  7  Or.  374 605 

v.  Rodgers,  41  Pa.  120 877 

Glade  v.  White,  42  Neb.  336 17 


996  TABLE   OF   CASES. 

Page 

Gladding  v.  St.  Matthias  Church,  25  R.  I.  268 583 

Gladson  v.  Whitney,  9  Iowa,  267 485 

Clancy  v.  Glancy,  17  Ohio  St.  134 61 

Glass  v.  Greathouse,  20  Ohio,  503 546 

Glenn,  Ex  parte,  20  S.  C.  64 682 

v.  Clark,  53  Md.  580 606 

Glenn's  Estate,  74  Cal.  567 576 

Glover's  Heirs,  Lessee  of,  v.  Kuffin,  6  Ohio  St.  255 526 

Glynn  v.  Glynn,  62  Neb.  872 737,  738 

Gobel  v.  Simeral,  67  Neb.  276 915,  924 

Goddard  v.  Sawyer,  9  Allen  (Mass.),  78 514 

Godfrey  v.  Smith,  73  Neb.  756 38,  78,  154 

Godfrey's  Estate,  In  re,  4  Mich.  304 482 

Godman  v.  Converse,  43  Neb.  463 277,  278 

Godwin  v.  Waterford,  107  N.  C.  168 675 

Goforth's  Lessee  v.  Longworth,  4  Ohio  St.  129 526 

Goldsmith  v.  Walker,  14  Or.  125 878 

Goldthorpe's  Estate,  In  re,  94  Iowa,  336 146,  148 

Goldthorpe's  Estate,  In  re,  115  Iowa,  430 138 

Goldthwaite  v.  Day,  149  Mass.  185 361,  362 

Goltra  v.  Penland,  42  Or.  18 423 

v.  Penland,  45  Or.  261 426,  427,  454 

Goddall  v.  Marshall,  11  N.  H.  88 415 

Goode  v.  Buf ord,  14  La.  Ann.  102 779 

Goodrich  v.  Adams,  138  Mass.  532 728 

Goodwin  v.  Hardy,  57  Me.  543 581 

v.  Jones,    3    Mass.    514 403 

v.  Milton,  25  N.  H.  458 265 

Gordon  v.  Gordon,  55  N.  H.  399 548 

v.  Jones,  86  Miss.  719 576 

Gosnell  v.  Flack,  71  Md.  423 750 

Goss  v.  Stone,  63  Mich.  329 826 

Gott  v.  Culp,  45  Mich.  265 846,  913 

Gotzian,  In  re,  34  Minn.  159 610 

Goudy  v.  Shank,  8  Ohio  St.  45 865 

Gould  v.  Moulaban,  53  N.  J.  Eq.  341 446 

Gould's  Estate,  In  re,  156  N.  Y.  423 657 

Gourley  v.  Linsenbigler,  51  Pa.  345 588 

Governor  v.  Williams,  25  N.  C.  152 779 

Grady  v.  Hughes,  64  Mich.  540 14 

T.  McCorkle,  57  Mo.  172 604 


TABLE    OF    CASES.  997 

Page 

Graham  v.  Burch,  52  Minn.  72 96 

v.  Graham,    143   N.   Y.   573 716 

v.  Hawkins,  38   Tex.  628 502 

v.  Hester,  15  La.  Ann.  148 860 

v.  Townsend,  62  Neb.  364 803 

Grammel's  Estate,  In  re,  120  Mich.  487 912 

Grandjean  v.  Beyl,  78  Neb.  349 263 

Grandstrand,  In  re,  49  Minn.  438 867 

Grant  v.  Hughes,  94  N.  C.  231 677 

v.  McKinney,  36  Tex.  32 364 

v.  Paddock,  30  Or.  320 725 

Graves  v.  Alden,  92  Me.  177 405 

v.  McHugh,  58  Mo.  499 762 

v.  Spedden,  46  Md.   527 593 

v.  Tilton,   63  N.  H.   192 411 

Gray  v.  Franks,  86  Mich.  482 406 

v.  Gray,  39  N.  J.  Eq.  322 238,  239 

Gray's   Appeal,   36   Pa.   243 846 

Green  v.  Alden,  92  Me.   177 405 

v.  Clark,  25   Vt.   136 801 

v.  Johnson,  3  Gill  &  J.   (Md.)   389... 852 

v.  Sergeant,   23  Vt.  466 224 

Greene  v.  Dennis,  6   Conn.   292 584 

v.  Greene,  11  Ohio  St.  535 603 

Greenman  v.  Harvey,  53  111.  386 492 

Greenough  v.  Small,  137  Pa.  132 819 

Greenwood  v.  Cline,  7  Or.  17 123 

v.  Town  of  Lasalle,   107  111.  225 437 

Gregg  v.  Currier,  36  N.  H.  200 779 

v.  Gregg,   18  N.  H.   190 924 

v.  Wilson,  24  Ind.  227 245 

Gregory  v.  Hughes,  20  Tex.  345 434 

v.  Orr,  61   Miss.   307 918 

Greiner's  Appeal,  103  Pa.  89 594 

Gress  Lumber  Co.  v.  Leitner,  91  Ga.  810 529 

Grider  v.  Eubanks,   12   Bush    (Ky.),   510 718 

Gridley  v.  Andrews,  8  Conn.   1 574 

Gridley's  Heirs  v.  Phillips,  5  Kan.  349 512 

Grier's  Appeal,  101   Pa.  412 898 

Griffith  v.  Frazier,  8  Cranch   (U.  S.) ,  25 235 

Griggs'  Appeal,  101  Pa.  512 536 


993  TABLE    OF    CASES. 


Grigg*  T.  Shaw.  42   N.  J.   Eq.  631  .............................  675 

Grime  T.  Borden,  166  Mass.  715  ................................  715 

Grimm,  Appeal  of,  105  Pa.  375  ................................  333 

Grimmet  v.  Titherington,  16  Ark.  377  ..........................  US 

Griswold  v.  Bigelow,  6   Conn.   258  ............................. 

v.  Prink,  22  Ohio  St.  79  ..................................  330 

Grochoski  v.  Grochoski.  77  Xeb.  506  ........................... 

Groton  T.   Buggies,  17   Me.   130  ................................  7SO 

Grymes  v.  Hone.  49  X.  Y.  17  ................................  5SS,  591 

Guilford  T.  Love,  49  Tex.  715  .................................  359 

Gunby  v.  Brown,  86  Mo.  253  ..................................  4S1 

Gutter  v.  Janes,  9  Cal.  643  ....................................  435 

Guthman  v.  Guthman,  18  Neb.  98  .......................  19,  till.  629 

Guy  v.  Gerricks,  85  HI.  428  ....................................  454 

Gyger's  Estate,  65  Pa.  311  ....................................  214 

H 

Haaek  T.  Tobin.  79  Minn.  101  ................................     66 

Hackett  v.  Haekett.  18  B.  I.  165  ...............................  444 

Haddock  v.  Boston  4  M.  B.  B.  Co.,  146  Mass.  155  ..............    10S 

Hadsall  T.  Hadsall,  82  Neb.  587  ...........................  280,  62S 

Hagennan  v.  Powell.   76  Neb.  514  .............................   4"> 

Hagy  T.  Avery,  69  Iowa,  434  ..................................  860 

Haight  v.  Hayes,  3  Neb.  Unof.  587  .............................   542 

Haines  v.  Cox,  1  Pinn.  (Wis.)  551  .............................   546 

v.  Hayden,  95  Mich.  324  .................  88,   131,   137,  148.   150 

Hake  v.  Stott's  Err.,  5  Colo.  140  ..............................  237 

Haldeman  v.  Haldeman,  40  Pa.  29  .............................   584 

Hale  v.  James,  6  Johns.  Ch.   (N.  Y.)   258  ...................  610,  615 

Hall  T.  Cardell,  111  Iowa,  206  ................................    HB 

v.  Crabb,  56  Neb.  392  ....................................   605 

T.  Cashing,  9  Pick.  (Mass.)  397  ............................    fl 

T.  Dunn,  52  Or.  479  .......................................   817 

T.  Ptnch,  29  Wis.  27S  .....................................  449 

T.  Hall,  1  Prob.  Div.  4S1  .................................   136 

T.  Hall,  132  Iowa,  644  ....................................   596 

T.  Hall,  140  Mass.  467  .....  ,  ..............................     54 

T.  Hall,  70  N.  H.  47  ......................................   605 

T.  Hall,  2  McCord  (S.  C.),  269  .............................   604 

T.  Hooper,  47   Neb.  Ill  ...................................   636 

T.  Perry,   87  Me.  569  .....................................     86 


TABLE   OF   CASES.  999 

Page 

Hall   r.    Ray,   40   Vt.   576 544 

r.  Smith,  61  N.  H.  144 722 

v.  Thayer,   105   Maw.   219 223 

v.  Woodman,   49   N.   H.   295 4.81 

Halley  v.  Webster,  21  Me.  461 131 

Ham   v.  Henderson,  50  Cal.  367 301 

Hambelton's    Appeal,    102    Pa.    50 857 

Hamiel  v.  Donnelley,  75  Iowa,  93 879 

Hamilton  v.  Pleasants,  31  Tex.  638 513 

Hamlin  v.  Kinney,  2  Or.  91 770 

Hammond  v.  Corbitt,  50  N.  H.  501 821 

v.  Dike,  42   Minn.  273 139 

v.  Wood,  15  B.  I.  566 118,  214 

Hamnett's  Appeal,  72  Pa.  337 919 

Hampton  v.  Westcott,  39  N.  J.  Eq.  522 83 

Hamrick  v.  Craven,  39  Ind.  241 330,  354 

Hancock  v.  Hubbard,  19  Pick.  (Mass.)   167 772 

Hancock's  Estate,  In  re,  7  Kulp  (Pa.),  36 259 

Hand  v.  Marcy,  28  Ind.  59 604 

Handy  v.  Noonan,  51  Miss.   156 897 

Hanifan  v.  Needles,  108  111.  403 244,  245 

Hanly  v.  Kubli,  46   Or.   632 605 

Banner  v.  Silver,  2  Or.  336 17,  286 

Hannum  v.  Day,  105  Mass.  33 482,  766 

Hansen  v.  Bergquist,  9   Neb.  278 225 

Hanson's    Estate,    133    Cal.    38 449 

Harbeck,  In  re.  145  N.  Y.  848 688 

Hardaway  v.  Parham,  27  Miss.  103 235 

Harding  v.  Grim,  25  Or.  596 426 

v.  Lamed,  4  Allen   (Mass.),  426 894 

Hardin's  Admr.  v.  Taylor.  78  Ky.  593 917 

Hardy  v.  Merrill,  56  N.  H.  227 138 

Hargroves  v.  Thompson,  31  Miss.  211 203 

iiarrington  v.  Jones,  53  Or.  239 259,  293 

v.  Stees,  82  111.  50 25 

v.  Tolbert,  110  Ga.  428 570 

Harker  v.  Irick,  10  X.  J.  Eq.  369 321,  781 

Harlan  r.  Stevenson,  30  Iowa,  317 431 

Harland  v.  Lillienthal,"  53  N.  Y.  438 691 

Harman  v.  Harman,  62  Neb.  52 442 

Barring  v.  Allen,  25  Mich.  508 147 


1000  TABLE   OF    CASES. 

Page 

Harris  v.  Fly,  9  Paige  (N.  Y.),  421 579 

v.  Parker,  41  Ala.   604 352 

Harrison  v.  Clark,  87  N.  Y.  572 785 

v.  Harrison,  80  Neb.  103 765,  766 

v.  Harrison's  Admr.,  4  Leigh  (Va.),  371 264 

v.  Nixon,  9  Pet.   (U.  S.)   483 39 

Harrod  v.  Norris'  Heirs,  11  Mart.  (La.)   297 515 

Hart's  Will  (Or.),  132  Pac.  529 83 

Harte  v.  Richenberg,  3  Neb.  Unof.  820 452 

Hartley  Y.  Croze,  38  Minn.  325 507,  508,  543 

Hartman  v.  Lee,  30  Ind.  281 440 

Hartnett  v.  Holdredge,  5  Neb.  Unof.  114 453 

v.  Holdredge,  73  Neb.  570 453 

v.  Wandell,  60  N.  Y.  346 184 

Hartson  v.  Elden,  50  N.  J.  Eq.  522 577 

Hartwell  v.  Bice,  1  Gray  (Mass.),  587 594 

Harvey  v.  Sullens,  46  Mo.  147 134 

Harvey,  In  re,  16  111.  127 545 

Harwood  v.  Goodright,  1  Copp.  (Eng.)   67 103 

Hascall  v.  Cox,  49  Mich.  435 55 

Hastings  v.  Bachelor,  27  Tex.  259 857 

Hatch  v.  Kelley,  63  N.  H.  29 482 

Hatcher  v.  Briggs,  6  Or.  31 547 

Hatheway  v.  Weeks,  34  Mich.  237 194,  897 

Hathaway's  Appeal,  46  Mich.  327 119 

Hathorn  v.  King,  8  Mass.  371 84,  131 

Haug  v.  Primeau,  98  Mich.  91 537 

v.  Schumaker,  166  N.  Y.  566 40 

Haun  v.  Martin,  48  Or.  204 743 

Haus,  In  re,  32  Minn.  157 164 

Haven  v.  Foster,  9  Pick.  (Mass.)  112 557 

Hawes  v.  Humphrey,  9  Pick.  (Mass.)  350 98 

Hawke  v.  Euyart,  30  Neb.  149 48,  67;  103 

Hawkins  v.  Carpenter,  88  N.  C.  403 774 

v.  Doe,  60  Or.  437 451,  465,  466 

v.  Hawkins'  Admr.,  28  Ind.  71 490 

v.  Bidenhour,  13  Mo.  125 430 

Hawkins'  Appeal,  32  Pa.  263 917 

Hayden  v.  Inhabitants  of  Stoughton,  5  Pick.  (Mass.)  528 584 

v.  Smith,  49  Conn.  83 841,  930 

Haydock  v.  Duncan,  40  N.  H.  45 194 


TABLE    OF    CASES.  1001 

Page 

Haynes  v.  Harris,  33  Iowa,  516 319 

v.  Haynes,  33  Ohio  St.  498 65 

Hayward  v.  Ellis,  13  Pick.  (Mass.)  272 912 

Hazleton  v.  Bogardus,  8  Wash.  102 297 

v.  Eeed,  46  Kan.  73 607 

Hazlett  v.  Blakeley's  Estate,  70  Neb.  613 462,  463,  464,  755 

Head  v.  Spier,  66  Kan.  386 749 

Head,  Succession  of,  28  La.  Ann.  800 236 

Headley  v.  Kirby,  18  Pa.  326 590 

Heard  v.  Lodge,  20  Pick.  (Mass.)  53 785 

Heartt  v.  Walsh,  75  111.  200 357 

Heath  v.  Bancroft,  49  Conn.  220 56 

v.  Page,  63  Pa.  108 145 

v.  Waters,  40  Mich.  457 357 

v.  Wells,  5  Pick.  (Mass.)  140 438 

Heath's  Estate,  In  re,  58  Iowa,  36 678 

Heavenridge  v.  Nelson,  56  Ind.  90 : .   720 

Hedman  v.  Anderson,  8  Neb.  165 569 

Heermans  v.  Hill,  4  Thomp.  &  C.  (N.  Y.)  602 19 

Heisey  v.  Smith,  138  Cal.  216 922 

Helmer  v.  Shoemaker,  22  Wend.  (N.  Y.)  137 43 

Helms  v.  Elliott,  89  Tenn.  446 732 

v.  Love,  41  Ind.  210 492 

Hemphill  v.  Hamilton,  11  Ark.  425 354 

Hendee  v.  State,  80  Neb.  80 6 

Henderson  v.  Adams,  15  Mich.  39 49 

v.  Coover,  4  Nev.  429 927 

v.  Levy,  52  Ga.  35 768 

v.  Whitinger,  56  Ind.  131 559 

Henderson,  Succession  of,  113  La.  Ann.  101 553 

Hendrix  v.  Barker,  49  Neb.  369 390,  434 

v.  Eichards,  57  Neb.  794 866 

v.  Rieman,  6  Neb.  521 298,  404 

Henrich  v.  Saier,  124  Mich.  86 139 

Henry  v.  Henry,  73  Neb.  746 323,  383 

Henry  County  v.  Taylor,  36  Iowa,  259 308 

Henry,  Estate  of,  65  Mich.  551 281 

Henschel  v.  Maurer,  69  Wis.  576 593 

Hentge's  Estate,  In  re,  86  Neb.  75 118,  156 

Herbert  v.  Berrier,  81  Ind.  1 62 

Herman  v.  Beck,  68  Neb.  566 441,  807,  808 


1002  TABLE   OF    CASES. 

Page 

Herreen's   Estate,   40   Or.   96 18,  251 

Herteman's  Estate,  In  re,  73  Cal.  545 352 

Hertzog  v.  Hertzog,  34  Pa.  318 467 

Heseht  v.  Calvert,  32  W.  Va.  215 924 

Hespen  v.  Wendeen,  85  Neb.  172 465,  466 

Hess  v.  Nichols,  72  Tex.  491 97 

Hess'  Will,  In  re,  48  Minn.  504 139 

Hessig  v.  Hessig,   131   Ky.   514 561 

Hessler  v.  Cady,  79  Neb.  691 594,  596 

Hewitt  v.  Bronson,  5  Daly  (N.  Y.),  1. 446 

Heydoek's  Appeal,  7  N.  H.  496 412 

Heyne  v.  Dorflier,  57  Hun   (N.  Y.),  591 457 

Hey  wood  v.  Heywood,  92  Neb.  72 38 

Hiatt  v.  McCalley,  171  Ind.  91 63 

Hibler   v.   Hibler,   104   Mich.   274 576 

Hibner  v.  Wilson,  83  Neb.  359 323 

Hicks  v.  Hicks,  12  Barb.  (N.  Y.)  322 801 

Higgins  v.  Carlton,  28  Md.  115 140 

v.  State,  87  Ind.  282 927 

Higgins'  Estate,  In  re,  15  Mont.  474 780 

High,  In  re,  2  Doug.  (Mich.)  517 155 

Hill  v.  Bowers,  120  Mass.  135 57 

v.  Hill,  121  Ind.  255 450 

v.  Hill,  90  Neb.  43 49,  55 

v.  Hill,  43  Pa.  531 261 

v.  State,  23  Ark.   604 435 

v.  Toms,  87  N.  C.  493 586 

v.  Tucker,  13  How.  (U.  S.)  458 413,  417 

Hillenrant  v.  Burton's  Heirs,  17  Tex.  140 499 

Hillman  v.  Young,  64  Or.  79 17,  293,  311,  319,  588,  589 

Hills  v.  Sherwood,  48  Cal.   386 315 

Hinkle  v.  Sage,  67  Ohio  St.  256 449 

Hinton  v.  Eland's  Admr.,  81  Va.  288 257 

Hisket  v.  Bozarth,  75  Neb.  70 454 

Hitchcock  v.  Cohen,  6  Ad.  &  E 259 

Kite's  Devisees  v.  Kite's  Exr.,  93  Ky.  257 325 

Hobart  v.  Hobart,  62  N.  Y.  80 448,  457 

v.  Upton,  2  Saw.  302 896 

Hobbins,  In  re,  41  Mont.  39 85 

Hobbs  v.  Middleton,  1  J.  J.  Marsh.  (Ky.)  177 769,  784 

Hobson  v.  Ewan,  62  HI.  146 490 


TABLE    OP    CASES.  1003 

Page 

Hobson   v.    Huxtable,    79    Neb.    334 532,  535 

Hockaday  v.  Lynn,  200  Mo.  456 732 

Hocker  v.  Wood's  Exr.,  33  Pa.  466 842 

Hodges  v.  Kimball,  91  Fed.  845 406 

v.  Thacher,  23  Vt.  455 792 

Hodgkins  v.  Merritt,  53  Me.  208 357 

Hoes  v.  Van  Hoesen,  1  Barb.  Ch.  (N.  Y.)  400 556 

Hoffman  v.  Armstrong,  90  Me.  123 704 

v.  Tucker,  58  Neb.  457 310,  314 

Hogan,  In  re,  134  Mich.  361 913 

Hogan  v.  Jackson,  Cowp.  299 42 

v.  Sullivan,  114  111.  456 589,  590 

v.  Wyman,  2  Or.  304 62 

Hoile  v.  Bailey,   58   Wis.  434 853 

Holbrook  v.  Brooks,  33  Conn.  347 865 

v.  McCleary,  79  Ind.  167 584 

Holcolmb  v.  Holcomb's  Exrs.,  11  N.  J.  Eq.  281 303 

v.  Phelps,  16  Conn.  127 407 

Holderbaum,  In  re,  82  Iowa,  69 324 

Holden  v.  Spies,  65  Kan.  412 '. 749 

Hollenbeck  v.  Pixley,  3  Gray  (Mass.),  521 ...276,  279 

Holliday  v.  Holliday,  16  Or.   147 184,  186,  230,  237 

Holliday's  Estate,  In  re,  18  Or.   179 256,  257 

Hollingsworth,  In  re,  Last  Will  of,  58  Iowa,  527 147 

Holloway  v.  Filson,  89  Neb.  403 453 

Hollowell  v.  Cole,  25  Mich.  345 319 

Holman  v.  Bennett,  44  Miss.  322 499 

v.  Riddle,  8  Ohio  St.  384 66 

Holmes  v.  Cole,  51  Or.  486 813,  817 

v.  Columbia  Trust  Co.,  4  Neb.  Unof.  893 392,  395 

v.  Holmes,  3  Paige  (N.  Y.),  363 602 

v.   Mason,  80   Neb.   448 499,  532,  534,  535,  628,  636 

Y.  Oregon  &  Cal.  Ey.  Co.,  9  Fed.  229 117,  120 

Holmes,  In  re,   33   Me.  577 252 

Holt  County  v.  Scott,  53  Neb.  176 5 

Holt,  In  re,  56  Minn.  33 63 

Holtz  v.  Burling,  84  Neb.  211 547 

Holyoke  v.  Bishop,  86  Neb.  490 627,  628,  681 

v.  Haskins,  5  Pick.  (Mass.)   20 537,  854 

v.  Sipp,  77  Neb.  394 65,  66 

Hood  v.  Hood,  85  N.  Y.  561 769 


1004  TABLE    OF    CASES. 

Page 

Hooker  v.  Van  Slambrook,  122  Mich.  65 450 

Hooks  v.  Evans,  69  Iowa,  52 928 

Hooper  v.  Hooper,  26  Mich.  435 917 

v.  Hooper's  Exrs.,  29  W.  Va.  276 350 

v.  Olmstead,  6  Pick.  (Mass.)   481 412 

Hopper  v.  Hopper,  90  Neb.  622 61 

Horah  v.  Knox,  87  N.  C.  583 142 

Horn  v.  Lockhart,  17  Wall.  (U.  S.)  570 346 

Horst  v.  McCormick  Harvester  Company,  30  Neb.  558 561,  562 

Horton,  City  of,  v.  Trompeter,  53  Kan.  150 217 

Hosmer  v.  Sturgis,  30  Ohio  St.  657 597 

Hotchkiss  v.  Ladd's  Estate,  62  Vt.  209 166 

Houck  v.  Meyers,  23  Or.  10 478,  484 

Hough  v.  Harvey,  71  111.  72 684 

House  v.  Dexter,  9  Mich.  246 389 

v.  Fowle,  22  Or.  303 604,  605,  608 

Housel  v.  Cramer,  13  Neb.  298 455 

Hovarka  v.  Havelik,  68  Neb.  14 500 

Hovey  v.  Harman,  49  Me.  269 915 

v.  Newton,  11  Pick.  (Mass.)  421 447 

Howard  v.  Babcock,  7  Ohio,  pt.  2,  p.  73 309 

Howbert  v.  Heyle,  57  Kan.  58 486 

Howe  v.  Bloemenkamp,  88  Neb.  389 543 

v.   Howe,   99  Mass.   88 145 

v.  Howe,  179  Mass.  546 651 

v.  Kern,  63  Or.  487 478,  482,  483,  485,  489,  502,  504 

v.  Richards,  112  Iowa,  220 91 

v.  Searing,  19  How.  Pr.  (N.  Y.)  14 859 

v.  Watson,  171  Mass.  30 486 

Howell  t.  Anderson,  66  Neb.  975 321 

v.  Taylor,  50  N.  J.  Eq.  428 146 

Howes  v.  Whipple,  41  Ga.  322 287 

Hoy  v.  Anderson,  39  Neb.  386 624,  628 

v.  Hoy,  93  Miss.  782 101 

Hoyt  v.  Hoyt,  112  N.  Y.  515 576 

v.  Sprague,  103  U.  S.  613 844,  868 

Hubbard,  In  re,  82  N.  Y.  90 898 

v.  Hubbard,  7  Or.  42 83,  116,  126,  130 

Huber's  Appeal,  80  Pa.  348 58,  584 

Huberman  v.  Evans,  60  Neb.  694 788,  876,  883,  898,  899 

Hudgin  v.  Hudgin's  Exr.,  6  Gratt.  (Va.)  320 876 


TABLE    OF   CASES.  1005 

Page 

Hudson  v.  Wilber,  114  Mich.  116 567 

Huebner  v.  Sesseman,  38  Neb.  78 440 

Hugenin  v.  Beasley,  14  Ves.  273 709 

Hughes  v.  Knowlton,  37  Conn.  429 55 

Hughes,  In  re,  95  N.  Y.  55 418 

Hulet  v.  Carey,  66  Minn.  327 101 

Humphrey,  In  re,  25  N.  J.  Eq.  513 85,  145 

v.  Merritt,  51  Ind.  197 264 

Humphreys  v.  State,  70  Ohio  St.  67 662 

v.  Taylor,  5  Or.  261 295,  311 

Hunt  v.  Grant,  87  Minn.  189 561 

v.  Thorn,  2  Mich.  213 309 

Hunt,  In  re,  141  Mass.  515 912 

Hunt,  In  re,  81  Me.  275 •. 102,  912 

Hunt's  Will,  In  re,  122  Wis.  460 127 

Hunter  v.  Buchanan,  87  Neb.  277 876,  881,  885 

Huntress  v.  Place,  137  Mass.  409 57 

Hurley  v.  Estes,  6  Neb.  391 99 

Hurste  v.  Hotaling,  20  Neb.  178 615 

Hussey  v.  Coffin,  1  Allen  (Mass.),  354 236 

Hutehins  v.  St.  Paul  M.  &  M.  Ey.  Co.,  44  Minn.  5 218 

Hutchinson  v.  Cassidy,  46  Mo.  431 544 

Hutson  v.  Jensen,  110  Wis.  26 930 

Hutton  v.  Hutton,  40  N.  J.  Eq.  461 418 

Hyatt  v.  Anderson,  69  Neb.  702 877 

Hyde  v.  Baldwin,  17  Pick.  (Mass.)  303 165 

v.  Bedding,  74  Cal.  493 231,  537 

Hyland  v.  Baxter,  98  N.  Y.  610 687 

I 

Ingersol  v.  Nangam,  84  N.  Y.  622 492,  541 

Inhabitants  of  Augusta  v.  Inhabitants  of  Windsor,  19  Me.  317.  ..  469 

Inman's  Admr.  v.  Gibbs,  47  Ala.  305 520 

Iowa  Land  Co.  v.  Douglas  County,  8  S.  D.  491 437 

Ireland  v.  Parmenter,  48  Mich.  631 55 

Irish  v.  Nutting,  47  Barb.  (N.  Y.)  370 588 

Irvine  v.  Beck,  62  Or.  596 424,  426,  701 

v.  Irvine  (Or.),  136  Pac.  19 42,  43 

Irvine's  Estate,  In  re,  203  Pa.  603 765 

Irwin  v.  Backus,  25  Cal.  214. ..' 784,  785 

v.  Zane,  15  W.  Va.  646 58 


1006  TABLE   OF   CASES. 

Page 

Inwin's  Estate,  141  Pa.  278 315 

Irwin's  Estate,  In  re,  152  Iowa,  323 703 

Isaac  v.  Halderman,  76  Neb.  825 61,  125,  132,  133 

v.  Halderman,  84  Neb.  251 132 

J 

Jackson  v.  Astor,  1  Finn.  (Wis.)  430 490 

v.  Bevins,  74  Conn.  49 556 

v.  Combs,  7  Cow.   (N.  Y.)   36 , 822 

v.  Hardin,  83  Mo.  175 84,  86 

v.  Hilton,  16  Johns.  (N.  Y.)  96 748 

v.  Housel,  17  Johns.  (N.  Y.)  281 51 

v.  Jackson,  28  Miss.  674 597 

v.  Jackson  (Or.),  135  Pac.  200 127 

v.  Johnson,  5  Cow.  (N.  Y.)  74 605 

v.  Magruder,  51  Mo.  55 518 

v.  Newton,  18  Johns.  Ch.  (N.  Y.)  355 572 

v.  O'Rourke,  71  Neb.  418 324,  600,  865 

v.  Phillips,  57  Neb.   189 230,  404,  434 

v.  Rayner,  12  Johns.   (N.  Y.)   291 348 

v.  Robinson,  4  Wend.  (N.  Y.)  436 482 

v.  Vickory,  1  Wend.  (N.  Y.)  414 146 

Jacobia  v.  Terry,  92  Mich.  275 869 

Jacobs  v.  Jacobs,  99  Mo.  427 308,  688 

v.  Morrow,  21  Neb.   233 272,  796 

Jacobs'  Appeal,  23  Pa.  477 519 

Jacobson  v.   Anderson,  72   Minn.  426 920,  931 

Jaffee  v.  Jacobson,  1  C.  C.  A.  24 930 

Jaffrey  v   Jaffrey  (N.  H.),  80  Atl.  504 324 

Jahns  v.  Nolting,  29  Cal.  507 288 

James  v.  James,  4  Paige  (N.  Y.),  115 58,  584 

v.  Meyer,  41   La.   Ann.    1100 537 

v.  Sutton,  36  Neb.  393 85 

James'  Estate  v.  O'Neil,  70  Neb.  132 279 

Janes  v.  Cleghorn,  54  Ga.  9 947 

Jarnagin  v.  Frank,  59  Miss.  393 257 

Jarvis  v.  Barrett,  14  Wis.  591 442 

v.  Rusick,  12  Mo.  63 544 

Jasper  v.  Jasper,  17  Or.  590 39 

Jeffree  v.  Walsh,  14  Neb.  143 783 


TABLE    OF    CASES.  1007 

Page 

Jenkins  v.  Clark,  71  Iowa,  552 853 

v.  Fowler,   63   N.   H.   844 53 

v.  Hall,  26  Or.  70 608 

Jenness  v.  Carlton,  40  Mich.  343 356 

Jennings  v.  Smith,  29  111.  116 325 

Jennings'  Admr.  v.  Chandler,  10  Wis.  31 262 

Jennison  v.  Hapgood,  10  Pick.  (Mass.)  77 406,  416,  444,  687 

Jeter  v.  Barnard,  42  Ga.  43 571 

Jetter   v.  Lyon,   70  Neb.   429 796 

Jewett  v.  Guyer,  38  Vt.  209 514 

Jillett  v.  Union  Nat.  Bank,  56  Mo.  304 57 

Jochumsen  v.  Suffolk  Savings  Bank,  3 -Allen  (Mass.),  87,  211 537 

Johannes  v.  Youngs.  45  Wis.  455 783 

John's  Will,  In  re,  6  Or.   188 116 

Johnson  v.  Armstrong,  97  Ala.  731 134 

v.  Ballou,  28  Mich.  ?92 57 

v.  Berlizheimer,  84  111.  54 357 

v.  Blackman,  11  Conn.  343 333 

T.Colby,    52    Neb.    327 296 

v.  Corbett,  11  Paige  (N.  Y.),  265 279 

v.  Evans,    8    Gill    (Md.),    155 595 

v.  Ghost,  11  Neb.  414 595 

Y.  Goss,  128  Mass.  433 559 

v.  Hollifield,    82    Ala.    123 684 

v.  Hoyle,    3    Head    (Tenn.),    55 595 

v.  Johnson,  106  Ind.  475 65 

v.  Johnson,  105  Md.  81 88 

v.  Johnson,  32  Minn.  513 604 

r.  Johnson,  2  Hill  Eq.  (S.  C.)  277 918 

v.  Johnson's   Estate,  66   Mich.   525 231 

v.  Jones,    2    Neb.    126 539 

v.  Kelley,  44  Ga.  485 825 

v.  Newton,  11   Hare,  165 911 

v.  Plume,  77  Ind.  166 606 

v.  Pulver,  1  Neb.  Unof.  290 548,  586,  703 

v.  Savage,   50   Or.   294 708,  756 

v.  Schafner,  23  Or.  115 803 

Johnson's   Estate,  In  re,   57   Cal.   529 65,  90 

Johnson,  In  re,  98  Cal.  531 947 

Johnson,  In  re,  87  Iowa,  130 823 

Johnson's  Heirs  v.  Chandler's  Heirs,  15  B.  Mon.   (Ky.)   584 928 


1008  TABLE   OF    CASES. 

Page 

Johnston  v.  Haynes,  68  N.  C.  514 856 

v.  Smith,  25  Hun   (N.  Y.),   171 784 

Jones  v.  Billstein,  28  Wis.  221 29G 

v.  Dove,   6   Or.    188 116 

v.  French,  72  Ind.   138 546 

v.  Hudson,  93  Neb.  561 39 

v.  Jones,    46    Iowa,    466 82 

v.  Jones,    14   B.    Mon.    (Ky.)    273 781 

v.  Keep's  Estate,  23   Wis.  45 442 

v.  Kanppen,  63  Vt.  391 722 

v.  Null,  9  Neb.  57 433 

v.  Parker,  67  Tex.  76 856 

v.  Piggott,   68   Neb.    140 795,  799 

v.  Kichardson,    5   Met.    (Mass.)    247 194,774 

v.  Selby,  Finch  Prec.  Ch.  300 592 

v.  Strickland,   61    Ga.   336 922 

r.  Walker,  103  U.  S.  444 351 

Jones'  Estate,  In  re,  83  Neb.  841 796 

Jones,  In  re,  172  N.  Y.  675 651 

Joy  v.  Elton,  9  N.  D.  428 780 

Judah  v.  Fredericks,  57  Cal.   389 302 

Judge  of  Probate  v.  Adams,  49  N.  H.  150 770 

v.  Claggett,   36   N.   H.   381 771 

v.  Cook,    57    N.    H.    450 930 

v.  Fillmore,  1  D.  Chip.   (Vt.)  420 770 

v.  Heydock,  8   N.  H.  491 799 

v.  Sulloway,    68    N.    H.    511 321,781 

Judson  v.   Creighton,  88   Neb.  37 740 

Jul   v.    Hansen,    87    Neb.    567 37,  39,  43 

Jurgens'  Estate,  87  Neb.  571 624 

Justices  of  Inferior  Court  v.  Sloan,  7  Ga.  31 769 

K 

Kader  v.  Yeargin   (Tenn.),  3.  S.  W.  178 781 

Kahn    v.    Isrealson,    62    Tex.    221 846 

Kain  v.  Fisher,  6  N.  Y.  597 260 

Kaise   v.   Lawson,   38   Tex.   160 748 

Kaminer  v.  Hope,  9  S.  C.  258 177 

Kammerer  v.  Morlock,  125  Mich.  320 538 

Karney  v.  Vale,  56  Ind.  542... 856 

Kaser  v.  Kaser,  68  Or.  158 38,  583,  742 


TABLE    OF    CASES.  1009 

Page 

Kaufman  v.  Breckenbridge,  117  HI.  305 43 

Kazebeer  v.  Nunemaker,  82  Neb.  732 897,  839 

Keegan,  Estate  of,  v.  Welch,  83  Neb.  166 172,  174,  177 

Keeler  v.  Trueman,  15  Colo.   143 263 

Keene  v.  Munn,  16  N.  J.  Eq.  398 559 

Keever  v.  Hunter,  66  Ohio  St.  616 750 

Keith  v.  Eaton,  58  Kan.  732 39 

Kelley  v.  Green,    63    Pa.    299 514 

Kelley  v.  Bronson,   26   Minn.   359 355 

T.  Devin,    65    Or.    215 465,  466,  467 

v.  McCallum,  83  N.  C.  593 567 

v.  Morse,   3   Neb.   224 943 

Kelsey,  Appeal  of,  47  Ark.  413 540 

v.  Kelley,  63   Vt.   41 318 

Kempe  v.  Pintard,  32  Miss.  324 508.  543 

Kempf 's  Appeal,  53  Mich.  352 53 

Kempsey   v.    McGinnis,    21    Mich.    123 123 

Kendall    v.    Bates,    35   Me.    357 309 

Keniston  v.  Adams,  80  Me.  290 119 

v.  Sceva,    54    N.    H.    24 592 

Kennedy  v.   Cromwell,   108  N.  C.   1 779 

v.Kennedy,    105    111.    350 52 

Kennedy,  In  re,  Estate  of,  157  Cal.  518 639 

Kenniston  v.  Leighton,  53  N.  H.  309 56 

Kent  v.  Bothwell,  152  Mass.  341 301 

v.  Mahaffey,   10  Ohio  St.  204 96 

v.  Morrison,    153    Mass.    137 376 

Kentucky  Bank  v.  Combs,  7  Pa.  543 691 

Kerlin's  Lessee  v.  Bull,   1   Dall.   175 46 

Kerly's   Appeal,   In   re,   109   Pa.    41 495 

Kern    v.    Cooper,    91    Minn.    121 295 

v.  Kern,   154   Ind.    29 97 

Kernochan  v.  New  York  El.  R,  Co.,  128  N.  Y.  559 293 

Kerns  v.  Dean,  77  Cal.  555 434 

Kerr   v.   Bosler,   62   Pa.   187 58 

v.Dougherty,    79    N.    Y.    327 59 

v  Loewenstein,   65   Neb.   43 801,  806 

v.  Lundsford,  31  W.  Va.  659 130,  131,  132 

Kerrigan  v.  Leonard  (N.  J.),  8  Atl.  503 148 

Kersey  v.  Nailey,  52  Me.  198 276 

Kessler's  Estate,  In  re,  87  Wis.  660 438,  449,  451 

64— Pro.  Ad. 


1010  TABLE   OF   CASES. 

Page 

Ketchum  v.  Shaw,  22  Ohio  St.  503 602 

Kettletas  v.  Gardner,  1  Paige  (N.  Y.),  488 845 

Kettry  v.  Thuma,  9  Ind.  App.  498 457 

Kidd  v.  Guibar,  63  Mo.  342 710 

Killefer  v.  McLain,  78  Mich.  249 365 

Kimball  v.  Ives,  77  Vt.  430 922 

v.  Linton,  98  111.   578 546 

Kimball's  Appeal,  45  Wis.  391 229 

King  v.  Boetcher  (Neb.),  147  N.  W.  830 45,  622 

v.  Boyd,  4  Or.  332 311 

v.  Davis,  87  Ind.  590 934 

v.  Gilson,   191   Mo.   307 347 

v.  Holmes,  84  Me.  219 143 

v.  Hughes,  52   Ga.  630 845 

v.  King,  3   Johns.   Ch.    (N.   Y.)    552 353 

v.  Neeley,  14  La.  Ann.  165 728 

v.  Talbot,  40  N.  Y.  86 352 

King's  Estate,  In  re,  113  Mich.  606 525 

Kingman's  Estate,  In  re,  20  111.  563 640 

Kingsbury  v.  Powers,   131   111.   182 925 

Kinne  v.  Kinne,  9  Conn.  104 84 

Kinney  v.  Knoebel,  51  111.  112 512 

v.  Newbold,  115  Iowa,  145 585 

Kinzie  v.  State,  71  Ind.  12 855 

Kiplinger  v.  Joslyn,  93  Neb.  40 820 

Kirby  v.  Taylor,  6  Johns.  Ch.   (N.  Y.)   242 918 

Kirk  v.  Bowling,  20  Neb.  260 118,  157,  158 

Kirsher  v.  Kirsher,  126  Iowa,  337 123 

Kiswetter  v.  Kress,  24  Ky.  Law  Eep.  1239 556 

Kittredge  v.  Folsom,  8  N.  H.  98 250 

Kitson  v.  St.  Paul  Trust  Co.,  78  Minn.  325 680 

Klenke,  In  re,  210  Pa.  575 722 

Kline  v.  Moulton,  11  Mich.  370 295 

Kloke  v.  Wolf,  78  Neb.  504 625 

Knapp  v.  Minot,  164  Mass.  38 733 

v.  Wallace,  50  Or.  534 540 

v.Windsor,  6  Cush.   (Mass.)    156 726 

Knickerbocker  v.  Knickerbocker,  58  111.  394 822 

Knight  v.  Hamakar,  33  Or.  154 242,  250,  251,  689,  802 

v.  Knight,  6  Ind.  App.  269 457 

Knight's  Estate,  In  re,  91  Neb.  127 705 


TABLE    OF    CASES.  1011 

Page 

Knowlton  v.  Bradley,  17  N.  H.  458 913 

Knott  v.  Shaw,  5  Or.  484 432 

Knox  v.  Bigelow,  15  Wis.  415 301 

v.  Knox,   25   Ala.   495 129 

Koehler  v.  Ball,  2  Kan.  173 518 

Kofka  v.  Bosicky,  41  Xeb.  328 449,  457,  465,  466,  467,  468 

Kohny  v.  Dunbar,  21  Idaho,  258 714 

Kolterman  v.  Chilvers,  82  Xeb.  216 2,  118,  158,  160 

Koopman  v.  Carroll,  50  Xeb.  824 152,  327 

Koslowski  v.  Xewman,  74  Xeb.  704 286,  290 

Kroh  v.  Heins,  48  Xeb.  691 224,  452 

Kulp  v.  Heiman,  90  Xeb.  167 897,  921 

Kyger  v.  Eyley,  2  Neb.  28 99,  300 

L 

Labs  v.  Labs,  92  Xeb.  378 465 

Lacey  v.  State  Treas.  (Iowa),  121  N.  W.  179 642 

Ladd  v.  Mills,  44  Or.  393 241,  518 

v.  Stephens,  147  Mo.  319 688 

v.  Wiggin,  35  X.  H.  421 259,  330 

Larr.ar  v.  Mieon,  112  U.  S.  452 850 

Lamb  v.  Wogan,  27  Xeb.  236 626 

Lamport  v.  Beeman,  34  Barb.  (N.  Y.)  239 559 

Landers  v.  Stone,  45  Ind.  404 198 

Lane   v.   Hill,   68   Mo.   275 97,  105 

v.  Moore,  151  Mass.  87 131 

v.Walker,    59    Or.     107 37,     42 

Langdon  v.  Astor's  Exrs.,  16  N.  Y.  34 587 

v.  Blackburn,  109  Cal.  19 164 

Langevin's  Will,  In  re,  45  Minn.  429 127 

Lang's  Estate,  65  Cal.  19 91 

Lanier  v.  Irvine,  21  Minn.  447 762 

Lanphere  v.  Lowe,  3  Xeb.  131 261 

Lantry  v.  Wolf,  49  Xeb.  374 290 

La  Plant,  In  re,  83  Minn.  366 822 

Lappin  v.  Mumf ord,  14  Kan.  9 258 

Larimer  v.  Wallace,  36  Xeb.  444 896,  900 

Larson  v.  Chase,  47  Minn.  307 444 

v.  Union  Pacific  B.  Co.,  70  Neb.  261 219,  221,  225,  230 

LaFsiter  v.  Travis,  98  Tenn.  330 156 

Latham  v.  Meyers,  57  Iowa,  619 855,  910 


1012  TABLE    OF    CASES. 

Page 

Latham  v.  Schaal,  25  Neb.  535 132,139,  146 

v.  Udell,  38  Mich.  238 92 

Laton   v.   Corser,   51    Minn.    406 604 

Latta  v.  Miller,  109  Ind.  302 308 

Laughton  v.  Atkins,  1  Pick.  (Mass.)  542 104 

Lautenschalger  v.  Lautenschlager,  80  Mich.  292 66 

Lawrence  v.  Kittridge,  21  Conn.  577 418 

v.  Wright,  23  Pick.  (Mass.)   128 286 

Lawrence's  Appeal  from  Probate,  49  Conn.  41 398 

Lawrey  v.  Sterling,  41  Or.  518 376,  383 

Laycock  v.  Olson,  60  111.  30 301 

Leach  v.  Lewis,  38  Ind.   160 354 

League  v.  Williamson,  33  Tex.  Civ.  App.  647 405 

Leahy  v.  Haworth,  141  Fed.  850 193,  228,  406 

Learned  v.  Mathews,  40  Miss.   210 545 

Leathers  v.  Greenacre,  53  Me.  561 ,      79 

Leatherwood  v.  Sullivan,  81  Ala.  458 265 

Leavens,  Estate  of,  65  Wis.  440 756,  925 

Leavitt  v.  Leavitt,  65  N.  H.  102 185 

Leavitt's  Estate,  In  re,  85  Neb.   721 743 

Le  Blanch,  Succession  of,  37  La.  Ann.  546 821 

Lee  v.  Lee,  22  Ind.  384 847 

v.  Lindell,    22    Mo.    202 663 

v.  Patrick,  31  N.  C.  135 420 

v.  Scudder,  31  N.  J.  Eq.  633 88 

Lee's  Case,  1  Minn.  60 14 

Leek  v.  Patten,  18  Me.  42 165 

Leigh  v.  Savidge's  Exrs.,  14  N.  J.  Eq.   124 553 

Leininger  Lumber  Co.  v.  Dewey,  80  Neb.  659 715 

Lenderink  v.  Sawyer,  92  Neb.  587 288,  444,  445 

Lenfers  v.  Henke,  73  HI.  405 611 

Lennig's  Estate,  52  Pa.  135 559 

Lentz  v.  Pilert,  60  Md.  296 217 

Leonard  v.  Barnum,  34  Wis.  105 870 

v.  Grant,  8  Or.  276 600 

v.  Putnam,  51  N.  H.  247 : 812 

v.  Steam  Nav.  Co.,  84  N.  Y.  48 360 

Leonard,  In   re,  Estate  of,  95  Mich.  295 85 

Leonard's  Appeal,  95  Pa.  196 870  _ 

Lesieur  v.  Simon,  73  Neb.  645 314 

v.  Sipperd,  84  Neb.  296 38 


TABLE    OF    CASES.  1013 

Page 

Letchworth's  Appeal,  30  Pa.  175 56,  57 

Levara  v.  McNeeny,  5  Neb.  Unof.  318 219,  230,  510,  886,  900 

Leverett  v.  Dismukes,  10  Ga.  98 223 

Levering  v.  Levering,  64  Md.  399 237 

v.  Rittenhouse,  4  Whart.   (Pa.)    130 595 

Levi  v.  Longini,  82   Minn.  324 .' 925 

Levy  v.  Riley,  4  Or.  393 241,  518 

Lewis  v.  Browning,  11  Pa.  493 917 

v.  Jones,  50  Barb.    (N.  Y.)   645 147 

v.  Palmer,  46  Conn.  454 44 

v.  Watrus,  7  Neb.  477 225 

v.  Williams,  54  Mo.   200 707 

Lewon  v.  Heath,  53  Neb.   707 295 

Liddell  v.  Liddell,  11  N.  J.  L.  44 787 

Ligare  v.  Semple,  32  Mich.  438 603 

Lind  v.  Burke,  50  Neb.  785 730 

Lindley  v.  O'Reilley,  50  N.  J.  L.  636 325 

Lindner  v.  Adams  County  Bank,  49  Neb.  735 356,  357 

Line  v.  Lowder,  122   Ind.  548 918 

Lines  v.  Lines,  142  Pa.  149 403 

Lingle  v.  Cook's  Admrs.,  32  Gratt.   (Va.)   262 765 

Link  v.  Reeves,  63   Neb.  424 812 

Li-Po-Tai's   Estate,    108    Cal.    484 186 

Lippincott's  Exrs.  v.  Lippincott,  19  N.  J.  Eq.  321 128 

Litchfield  v.  Cudworth,  15  Pick.   (Mass.)   23 324,  512 

Little  v.  Anderson,  71  N.  C.   190 869 

v.  Caldwell,  101  Cal.  553 362 

v.  Giles,  25  Neb.  313 42,  44 

v.  Lesia,    4    Mich.    119 324 

v.  Little,  13  Gray  (Mass.),  264 90 

Lloyd   v.   Malone,   23    111.    43 920 

Lobeck  v.  Lee-Clark,  Anclreesen  Hardware  Co.,  37  Neb.  158 361 

Lockwood  v.  Sturdevant,  6  Conn.  373 512 

Lodge  v.  Fitch,  72  Neb.  652 594,  595 

Lommen  v.  Tobiason,  52  Iowa,  665 685 

Long  v.  Burnett,  13  Iowa,  33 177 

v.  Landerman,   118   Mich.    174 , 324 

v.  Shackleford,   25   M.'ss.   566 308 

v.  Thompson,   34   Or.   362 298 

Loomis  v.  Armstrong,  49  Mich.  521 362 

v.  Tifft,  16  Barb.   (N.   Y.)    541 315 


1014  TABLE   OP    CASES. 

Page 

Loosemore  v.  Smith,   12  Neb.   344 14,  118,  158,  162 

Loosing  v.  Loosing,  85  Neb.  66 41,  44,  47 

Lord  v.  Hough,  37  Cal.  657 853 

v.  Lord,  58  N.  H.  7 66 

Loring  v.  Bacon,  3  Cush.    (Mass.)   465 873 

v.  Blake,   98   Mass.   253 47 

v.  Cunningham,  9  Cush.   (Mass.)   87 250 

v.  Thorndike,  5   Allen   (Mass.),  260 53 

Losey  v.  Westbrook,  35  N.  J.  Eq.  116 57 

Lothrop  v.  Wightman,  41  Pa.  397 ; 334 

Love  v.  Love,  8  Or.  83 603 

v.  Walker,  58   Or.   95 45 

Lovell  v.  Minot,  20  Pick.    (Mass.)    119 340 

Lovering  v.  Levering,  129  Mass.  97 584 

Low  v.  Bartlett,  8  Allen  (Mass.),  259 418 

Lowder  v.  Lowder,  58  Ind.  538 , 131 

Lucas  v.  Cassaday,  2  G.  Greene  (Iowa),  208 441 

Luce  v.  Foster,  42  Neb.  818 189 

v.  Harris,   79   Pa.   432 54 

Lucht  v.  Behrens,  28  Ohio  St.  231 349,  350 

Lucke's  Estate,  In  re,  64  Or.  320 423 

Luddington  v.  Patton,  111   Wis.  268 718 

Ludlow's  Heirs   v.   Park,  4   Ohio,  5 i. 899 

Luieh  v.  Medin,  3  Nev.  93 236 

Lundsford  v.  Jarrett,  2  Lea  (Term.),  579 500 

Lunt  v.  Aubens,  39  Me.  352 825 

Luper  v.  Wertz,  19  Or.  122 64,  65,  116,  130 

Luppie  v.  Winans,  37  N.  J.  Eq.  245 853 

Lupton  v.  Lupton,  2  Johns,  Ch.  (N.  Y.)  614 576,  577 

Lydick  v.  Chaney,  64  Neb.  288 17,  574,  747,  755,  769 

Lynch  v.  Clements,  24  N.  J.  Eq.  431 139 

v.  Divan,  66  Wis.  490 273 

v.  Kirby,  65  Ga.  279 355 

v.  Eotan,  39  111.  14 924 

Lynn  v.  Yeaton,  &  Cranch  C.  C.  182 552 

Lyon  v.  Dada,  127  Mich.  495 104 

v.  Osgood,  58  Vt.  707 321 

v.  Vanatta,  35  Iowa,  521 490 

Lyons  v.  Carr,  77  Neb.  883 533,  535 

v.  Hammer,  84  Ala.  197 483 


TABLE    OF    CASES.  1015 

Me 

Page 

MeAffee  v.  Phillips,  25  Ohio  St.  374 706 

McAnnulty  v.  McClay,  16  Neb.  418 404,  405,  524,  526 

McBride  v.  No.  Pac.  Ry.  Co.,  19  Or.  65 398 

McCabe  v.  Lewis,  76  Mo.  298 234 

McCalla  v.  Bain,  45  Fed.  438 731 

McCallister  v.  Lancaster  Co.  Bank,  15  Nev.  295 861 

McCampbell  v.  Durst,  73  Tex.  410 544 

McCartney  v.  Osburn,  118  111.  403 57,  581 

McCarty  v.  Frazer,  62  Mo.  263 781 

McChesney,  In  re,  106  Wis.  315 825 

McClary  v.  Stull,  44  Neb.  464 88,  135,  136,  150 

McClay  v.  Foxworthy,  18  Neb.  295 480,  483,  504,  542 

McClave  v.  McClave,  60  Neb.  464 598,  749 

McCleary  v.  Menke,  109  El.  294 203,  -924 

McCleery  v.  Allen,  7  Neb.  21 48 

McClellan  v.  Filson,  44  Ohio  St.  184 444 

McClellan's  Appeal,  29  Pa.  369 436 

McClosky  v.  Gleason,  56  Vt.  264 864 

v.  Plantz,  76  Minn.  323 847 

McCord  v.  Oakland  Quicksilver  Mining  Co.,  64  Cal.  134 622 

v.  Thompson,  92  Ind.  565 417 

McCormick  v.  Elsea's  Estate,  107  Va.  472 119 

v.  Hanks,  105  Iowa,  639 596 

r.  McCormick,  53  Neb.  255 472,  473 

v.  Paddock,  20  Neb.  486 861 

McCoy  v.  Conrad,  64  Neb.  150 81,  124,  146,  149 

v.  Lane,  66  Neb.  147 862 

v.  Morrow,   18  HI.  519 578 

McCracken  v.  McCracken,  6  T.  B.  Mon.  (Ky.)  252 622 

McCrary  v.  Biggers,  40  Or.  465 578 

v.  Tasker,  41  Iowa,  255 281 

McCreary  v.  Creighton,  76  Neb.  179 700 

McCue  v.  Garvey,  14  Hun  (N.  Y.),  562 446 

McCulloch  v.  Campbell,  49  Ark.  367 92 

v.  Valentine,  24  Neb.  215 38 

McCullough  v.  Estes,  20  Or.  349 536,  896 

McCullough's  Estate,  In  re,  31  Or.  86 688,  691 

McCully  v.  Chapman,  58  Ala.  325 519 


1016  TABLE   OF    CASES. 

Page 

McCune  r.  House,  8  Ohio  St.  144 79 

McCurdy  v.  McCurdy,  197  Mass.  248 644 

v.  Neall,  42  N.  J.  Eq.  333 67.  1 25 

McDonald  v.  Meadows,  1  Met.  (Ky.)  507 927 

McDowell  v.  First  Nat,  Bank  of  Sutton,  73  Neb.  307 690 

v.  Jones,  58  Ala.  25 235 

McDuffie  v.  Mclntyre,  11  S.  C.  351 866 

McElroy  v.  Hatheway,  44  Mich.  399 . 194,  674 

McEntee  v.  Bonacum,  66  Neb.  551 444 

McEwan  v.  Zimmer,  38  Mich.  765 442 

McFadden  v.  Council,  88  N.  C.  105 238 

v.  Ross,  93  Ind.  134. 236 

McGarvey  v.  Darnall,  134  111.  367 459 

McGee  v.  McDonald's  Estate,  68  Mich.  628 472 

McGhee's  Estate,  In  re,  109  Iowa,  9 650 

McGlave  v.  Fitzgerald,  67  Neb.  417 315,  713 

McGrath  v.  Reynolds,  116  Mass.  566 590 

McGraw  v.  Irwin,  87  Pa.  139 417 

McGrew  v.  State  Bank  of  Humboldt,  60  Neb.  716 432,  472,  474 

Mcllvaine  v.  Harris,  20  Mo.  457 529 

Mclntire  v.  Mclntire,  64  N.  H.  609 151 

Mclntyre  v.  Mclntyre,  120  Ga.  67 95 

McKay  v.  Freeman,  6  Or.  449 603,  614 

v.  Williams,  87  Mich.  547 889 

McKay,  In  re,  Will  of ,  110  N.  Y.  611 66 

McKee  v.  Thomas,  9  Kan.  543 898 

McKenna  v.  McMichael,  189  Pa.  440 107 

McKim  v.  Aulbach,  180  Mass.  481 765 

v.  Bartlett,  129  Mass.  226 771 

McKinley  v.  Coe,  66  N.  J.  Eq.  70 556 

McKinnon  v.  McKinnon,  56  Fed.  409 286,  467 

v.  McKinnon,  81  N.  C.  201 862 

McKnight's  Exrs.  v.  Walsh,  24  N.  J.  Eq.  498 636 

McLaughlin  v.  McCumber,  36  Pa.  14 483 

McLean  v.  Hosea,  14  Ala.  194 870 

McMahon  v.  Harrison,  6  N.  Y.  443 213 

v.  Ryan,  20  Pa.  329 91 

McMullen  v.  Brazelton,  81  Ala.  412 697 

McNabb  v.  Wrxon,  7  Nev.  163 273 

McNagle  v.  Parker,  75  Neb.  139 96 

MeNally  v.  Weld.  30  Minn.  209 445 


TABLE   OF   CASES.  1017 

Page 

McNeeley  v.  Pearson  (Tenn.  Ch.  App.),  42  S.  W.  165 109 

McNish  r.  State,  74  Neb.  261 831 

McPherson,  In  re,  104  N.  Y.  306 662 

McQueen  v.  McDaniel  (Ky.),  35  S.  W.  880 546 

McKaes  r.  McDoland,  57  Ala.  423 295 

McShane's  Estate,  In  re,  84  Neb.  70 799 

M 

Mackey  v.  Coxe,  18  How.  (U.  S.)  100 418,  455 

Mackin  v.  Hobbs,  126  Wis.  216 704 

Maddox  v.  Maddox,  114  Mo.  35 139 

Madison  v.  Larmon,  170  111.  65 40 

Madison  County  v.  Johnston,  51  Iowa,  152 926 

Magenau  v.  Bell,  13  Neb.  247 454 

Magness  v.  Modern  W.  of  A.,  146  Iowa,  1 212 

Magoun  v.  Illinois  Trust  &  Savings  Bank,  110  U.  S.  283 637 

Magruder  v.  Carroll,  4  Md.  335 553 

Mahaffey  v.  Mahaffey,  63  Iowa,  505 626 

Makepeace  v.  Moore,  10  111.  474 354 

Malick  v.  McDermott's  Estate,  25  Neb.  267 798 

Mall's  Estate,  In  re,  80  Neb.  232 701,  704 

Malone  v.  Cornelius,  24  Or.  194 182,  807,  815 

Mallory's  Appeal,  62  Conn.  218 198 

Manahan  v.  Gibbons,  19  Johns.  (N.  Y.) 766 

Manatt  v.  Scott,  106  Iowa,  203 85,  139,  146 

Mandelbaum  v.  McDonnell,  29  Mich.  78 94 

Mann  v.  Mann's  Estate,  53  Vt.  48 626 

Manning  v.  Bonacum,  83  Neb.  417 747 

v.  Leighton,  65  Vt.  84 258 

v.  Manning,  61  Ga.  137 925 

v.  Mulrey,  192  Mass.  547 546 

Manning's  Estate,  In  re,  84  Neb.  60 579 

Manser's  Estate,  60  Or.  229,  239,  256,  359 60,  735 

Mansfield  v.  Hill,  56  Or.  405 625,  629,  634 

v.  McFarland,  202  Pa.  173 408 

Mantz  v.  Buchanan,  1  Md.  Ch.  Dec.  202 602 

Manwell  v.  Briggs,  17  Vt.  176 301 

Marietta  v.  Marietta,  90  Iowa,  201 449,  450 

Markover  v.  Krause,  132  Ind.  294 934 

Marks  v.  Coats,  37  Or.  611 239,  264,  268,  311,  359 


1018  TABLE    OF    CASES. 

Page 

Mark's  Estate,  Tn  re,  63  Or.  256 239 

Mark's  Estate,  In  re,  66  Or.  344 236,  237,  359,  675 

Marrey's  Estate,  In  re,  65  Cal.  237 689 

Marsellis  v.  Thalheimer,  2  Paige  (N.  Y.),  35 733 

Marsh  v.  Marsh,  92  Neb.  189 56 

v.  People,  15  111.  284 236 

Marshall  v.  Berry,  13  Allen  (Mass.),  43 590 

v.  Crow's  Adrar.,  29  Ala.  278 209 

Marshall  County  v.  Hanna,  57  Iowa,  372 330,  574 

Marston  v.  Marston,  17  N.  H.  503 97 

Martin  v.  Bond's  Estate,  64  Neb.  868 500 

v.  Gage,  147  Mass.   204 404,  407,  409 

v.  Davis,  89  Mass.  376 853 

v.  Grover,  9  Neb.  265 2 

v.  leaking,  1  Hagg.  Ecc.  244 105 

v.  Long,  53  Neb.  694 732,  792 

v.  Martin,  70  Neb.  207 152 

v.  Martin,  108  Wis.  204 449 

v.  Scott,  12  Neb.  42 454 

Martin's  Estate,  In  re,  56  Minn.  420 425 

Martley  v.  Martley,  77  Neb.  183 43 

Marvel  v.  Phillips,  162  Mass.  299 348 

Marvin  v.  Bowlby,  170  111.  18 709 

v.  Schilling,  12  Mich.  356 25,  554,  898 

Marx  v.  McGlynn,  88  N.  Y.  357 134,  141,  148 

Mason  v.  Buchanan,  62  Ala.  112 SCO 

Mason's  Estate,  In  re,  52  Or.  178 321,  683 

Masters  v.  Jones,  158  Ind.  647 857 

Matthews  v.  Duryea,  46  Barb.  (N.  Y.)  69 602 

Matthis  v.  Bennett,  21  N.  H.  199 684 

v.  Pitman,  32   Neb.    191 156,  448 

Mattison  v.  Mattison,  50  Or.  254 49 

Mattoon  v.  Cowing,  13  Gray  (Mass.),  387 927 

Mattox  v.  Patterson,  60  Iowa,  434 915 

Mauarr  v.  Parrish,  26  Ohio  St.  636 899 

Maulfairs'  Appeal,  110  Pa.  402 922 

Maurer  v.  Reif Schneider,  89  Neb.  173 79 

Maus  v.  Heilman,  39  Neb.  222 510,  520 

Maxwell  v.  Higgins,  38  Neb.  671 583 

v.  Hill,  89  Tenn.  584 63 

May,  In  re,  45  Ch.  Div.  499 461 


TABLE    OF    CASES.  1019 

Page 

May  v.   Kelley,    61    Ala.    489 768,  782 

Maynard  v.  Davis,  127  Mich.  579 606 

v.  Vinton,  49  Mich.  139 92,  135 

Meach  v.  Meach,  24  Vt.  591 590,  591 

Mead  v.  Bakewell,  8  Mo.  App.  549 921 

v.  Byngton,  10  Vt.  116 330 

v.  Weaver,  42  Neb.  149 , 455 

Mearler  v.  Archer,  65  N.  H.  214 732,  947 

Meadows  v.  Meadows,  81  Ala.  451 484,  519 

Meek  v.  Lange,  65  Neb.  783 626 

Meisner  v.  Hill,  92  Neb.  435 4C2,  468,  530,  623,  635 

Melberg's  Appeal,  86  Pa.  129 ; 239 

Melcher  v.  Schluter,  5  Xeb.  Unof.  445 542 

Mells,  In  re,  64  Iowa,  391 856 

Mendenhall's  Will,  In  re,  43  Or.  452 117,  123,  126,  130 

Merchant  v.  Merchant,  2  Brad.  Sur.  (N.  Y.)  432 592 

Merchant,  In  re,  39  N.  J.  Eq.  506 259 

Merchants'  Nat.  Bank  v.  Weeks,  53  Vt.  115 352 

Merriam,  In  re,  136  N.  Y.  58 150 

Merrick  v.  Kennedy,  46  Neb.  264 707,  746,  791 

Merrifield  v.  People,  242  111.  400 641 

Merrill  v.  Harris,  65  Ark.  335 877 

v.  New  England  Mutual  Life  Ins.  Co.,  103  Mass.  245 413 

Metz'  Appeal,  11  Serg.  &  R.  (Pa.)  201 444 

Meyers  v.  Carter,  37  N.  C.  146 544 

Michel   v.    Borders,  129  Ind.  529 898 

Michener  v.  Dale,  23  Pa.  59 592 

Michigan  Land  and  Iron  Co.  v.  Nester,  147  Mich.  599 348 

Michoud  v.  Girod,  4  How.  (U.  S.)  503 545 

Middleton  v.  Eobinson,   1  Bay  (S.  C.),  58 447 

Miller  v.  Congdon,  14  Gray  (Mass.),  114 694 

v.  Hanson,  89  Neb.   224 480,  510 

v.  Hoberg,  22  Minn.  249 296 

v.  Janney's   Exr.,   15   Mo.  235 368 

v.  Miller,  82  111.  463 277 

v.  Miller,  3  Serg.  &  R.  (Pa.)  267 144 

v.  Miller's  Estate,  69  Neb.  441 162,  165,  168 

y.  Osterloh,  157  Pa.  264 91 

v.  Rich,  204  111.  444 547 

v.  Williamson,  5   M-l.   219 354 

Miller,  In  re,  32  Neb.  480 215,  225,  226 


1020  TABLE   OF    CASES. 

Page 

Miller's  Appeal,  113  Pa.  459 656 

Miller's  Estate,  In  re,  69  Neb.  441 122 

Miller's  Exr.  v.  Simpson,  8  Ky.  Law  Rep.  518 353 

Miller's  Will,  In  re,  49  Or.  456 96,  105 

Millett  v.  Early,  19  Neb.  266 569 

Milligan  v.  McLaughlin,  94  Neb.  171 936,  944,  948 

Mills  v.  Mills,  22  Or.  210 236 

v.  Van  Voorhies,  30  N.  Y.  412 602 

Mills'  Estate,  In  re,  40  Or.  428 237,  242 

Miltonberger  v.  Elam,  11  La.  Ann.  668 350 

Minot  v.  Tappan,  122  Mass.  535 55 

Missouri  Pac.  Ry.  Co.  v.  Bradley,  51  Neb.  596 245 

v.  Jay's  Estate,  53  Neb.  747 243,  790 

v.  Lewis,  24  Neb.  848 ,218,  219,  300,  301,  407 

v.  Palmer,  55  Neb.  559 821 

Mitchel  v.  Campbell,  19  Or.  213 532,  534 

v.  Kaufman    -(Neb.),   145   N.  W.  247 212 

Modern  Woodmen  v.  Hester,  66  Kan.  129 823 

Moffitt  v.  Moffitt,  69  111.  641 485,  540 

Mohr  v.  Porter,  51  Wis.  487 881 

Moline  v.  Carlson,  92  Neb.  419 465,  466,  468 

Mollering  v.  Kinneberg,  78  Neb.  758 83,  133 

Monastes  v.  Catlin,  6  Or.  119 3,  883 

Moncrief  v.  Moncrief,  73  Ind.  587 478 

Monell  v.  Monell,  5  Johns.  Ch.   (N.  Y.)   283 766,  913 

Money  v.  Turnipseed,  50  Ala.  499 486,  542 

Monroe  v.  Barclay,  17  Ohio  St.  302 91 

v.  Hudart,  79  Neb.  569 66,  67 

v.  Jones,  8  R.  I.  526 51 

Montgomery  v.  Cloud,  27  S.  C.  188 676,  707 

Montgomery's    Appeal,   92   Pa.    202 326 

Montour  v.  Purdy,  11  Minn.  384 511,  543 

Montoya  v.  Miller,  7  N.  M.  289 915 

Moody  v.  Butler,  63  Tex.  210 545 

Mooney  v.  Olsen,  22  Kan.   69 147 

Moore  v.  Alden,  80  Me.  301 585,  586 

v.  Beckwith,  14  Ohio  St.  135 577 

v.  Burrows,  34  Barb.  (N.  Y.)   173 264 

v.  Burrows,  89  Tenn.  101 597 

v.  Fields,  42   Pa.   472 423 

v.  Flock,  77  Neb.  52 730 


TABLE    OF    CASES.  1021 

Page 

Moore  v.  Neil,  39  HI.  256 550 

T.  Philbrick,    32    Me.    102 538 

v.  Shields,  69  N.  C.  50 913,  925 

v.  State,  46  Ind.  458 766 

v.  Willamette  C.  Co.,  7  Or.  59 219,  243 

v.  Waller's  Heirs,  1  A.  K.  Marsh.  (Ky.)   488 772 

Moore's  Estate  v.  Moore,  33  Xeb.  509 218,  219,  230,  231,  232,  407 

Moore's  Estate,  In  re,  72  Cal.  335 688 

Moore's   Estate,  In   re,  96   Cal.   522 324 

Moore's  Exrs.  v.  Blauvelt,  15  N.  J.  Eq.  367 136,  146 

Moran,  In  re,  151  N.  Y.  555 934 

Morefield  v.  Harris,  126  N.  C.  625 407 

Moreland  v.  Brady,  8  Or.  312 61,     62 

Morey  v.  Sphier,  63  N.  H.  507 99 

Morgan  v.  Dodge,  44  N.  H.  255 18,  163,  245 

v.  Ireland,   1   Idaho,   786 101 

v.  Johnson,  68  111.  190 920 

v.  Sackett,  57  Ind.  580 602 

Morgan,  In  re,  104  N.  Y.  74 594 

Morgan's  Estate,  46  Or.  236 18,  426,  427 

Morgan's  Will,   110  Wis.   7 146 

Morrell  v.  Dickey,  1  Johns.  Ch.  (N.  Y.)  153 872 

Merrill  v.  Foster,  33  N.  H.  379 273 

v.  Otis,  12  N.  H.  466 748 

Morris  v.  Chicago  R.  I.  &  P.  Ry.  Co.,  65  Iowa,  727 300 

v.  Dooley,  59  Ark.  483 948 

v.  Garrison,  27  Pa.  226 863 

v.  Hogle,  37  111.  150 483 

v.  Morton's  Exrs.   (Ky.),  20  S.  W.  287 131 

v.  Mowatt,  2  Paige  (N.  Y.),  586 422 

v.  Simpson,   3   Houst.    (Del.)    586 580 

Morrisey  v.  Mulhern,  168   Mass.  412 446 

Morrison  v.  Kinstra,  55  Miss.  71 920 

Morrison's  Estate,  In  re,  48  Or.  612 667,  804 

Mortenson  v.  Bergthold,  64  Neb.  208 773 

Morton  v.  Hatch,  54  Mo.  408 414 

T.  Johnston,   124  Mich.   561 694 

v.  Preston,  18  Mich.  60 287 

v.  Rainey,  82  111.  215 450 

Morton,  Estate  of,  v.  Morton,  62  Neb.  420 731 

Moses  v.  Julian,  45  N.  H.  52 9 


1022  TABLE    OF    CASES. 

Page 

Mote  v.  Kleen,  83  Neb.  585 533,  534 

Motley  v.  Motley,  45  Ala.  455 917 

v.  Motley,  53  Neb.  375 500,  504,  529,   600,  601,  604 

Mott  v.  Ackerman,  92  N.  Y.  539 327 

Moulton  v.  Holmes,  57  Cal.  352 307 

Mower's  Appeal,  48  Mich.  441 695 

Mowrey  v.  Peck,  2  R.  I.  260 570 

Moyle  v.  Moyle,  2  Buss.  &  M.  710 911 

Mulf ord  v.  Beveridge,  78  111.  455 894 

v.  Minch,  11  N.  J.  Eq.  16 547 

Mulholland's  Estate,  217  Pa.  65 83 

Mullan  v.  Walker,  69  Iowa,  92 91 

Mullan's  Will,  140  Wis.  291 85 

Mullanphy  v.  St.  Louis  Co.,  6  Mo.  563 242 

Mullenschlader's  Estate,  In  re,  137  Wis.  32 119 

Mulligan  v.  Leonard,  46  Iowa,  692 79 

Mulloy  v.  Kyle,  26  Neb.  313 259,  500 

Munden  v.  Bailey,  70  Ala.  63 336 

Munger's  Estate,  In  re    (Iowa),  150  N.  W.  447 689,  691 

Municipal  Court  v.  Henry,  11  R.  I.  563 770 

Munteith  v.  Rahn,  14  Wis.  210 33  J 

Murdock  v.  Murdock,  219  111.  123 716 

Murphy  v.  Hanrahan,  50  Wis.  485 319 

v.  Hill,   77   Ind.   229 544 

v.  Murphy,  2  Mo.  App.  156 925 

v.  Nathans,  46  Mo.  508 594 

v.  Walker,  131  Mass.  341 864 

Murray  v.  Oliver,  3  B.  Mon.  (Ky.)  1 244 

Murray's  Estate,  In  re,  56  Or.  138 424,  430,  551 

Murry  v.  Hennessey,  48  Neb.  608 61,  127 

Musick  v.  Beebe,  17  Kan.  47 679 

Musselman  v.  Eshelman,  10  Pa.   301 515 

Musser  v.  Oliver,  21  Pa.  362 336 

Myers  v.  McGavock,  39  Neb.  843.  .  .542,  821,  876,881,  882,  886,  889,  891 

Myrick's  Heirs  v.  Boyd,  3  Hayw.  (Tcnn.)  179 263 

N 

Nagle  v.  Robbins,  9  Wyo.  211 911,  925 

Nail  v.  Maurer,  25  Md.  322 715 

Naiman  v.  Bohlmeyer  (Neb.),  150  N.  W.  829 623,  625,  627,  628 


TABLE    OF    CASES.  1023 

Page 

Nash  v.  Sawyer,  114  Iowa,  742 784 

National  Bank  v.  Bradshaw,  91  Neb.  714 211,  439 

National  Christian  Assn.  of  Illinois  v.  Tomas,  63  Neb.  585 40 

National  Life  Ins.  Co.  v.  Fitzgerald,  61  Neb.  692 433 

Naundorf  v.  Schuman,  41  N.  J.  Eq.  14 328 

Neal  v.  Davis,  53  Or.  525 600,  610,  735 

v.  Knox  &  Lincoln  R.  R.,  61  Me.  298 265 

v.  Patten,  40  Ga.  363 544 

Neary  v.  Neary,  70  Neb.  349 384,  900 

Nebraska  Loan  &  Trust  Co.  v.  Smassall,  38  Neb.  516 627 

Nebraska  Mfg.   Co.  v.  Maxon,  23  Neb.  224 13 

Nebraska  Wesleyan  University  v.  Bowen>  73  Neb.  598 '. 470 

Necker's  Estate,  In  re,  80  Neb.  123 453,  456 

Needham  v.  Belote,  39  Mich.  487 309 

Neeley   v.   Blair,   157   Pa.  417 574 

Neff's  Appeal,  48  Pa.  501 332 

Neff's   Appeal,   57   Pa.   91 353 

Neighbors  v.  Neighbors  (Ky.),  65  S.  W.  607 444 

Neill  v.  Neill,  31  Miss.  36 853 

Neilson  v.   Cook,  40  Ala.   498 925 

Nelson  v.  Boynton,  54  Ala.  368 187,  248 

v.  Bronnenberg,  81  Ind.  193 512 

v.  Hurkel,  30  Kan.  456 436 

v.  McClanahan,    55    Cal.    308 148 

v.  Nelson,  18  Ohio  St.  282 44 

v.  Wyan,  21  Mo.  347 597 

Nelson's  Estate,  In  re,  75  Neb.  298 83,     86 

Nettleton  v.  Nettleton,  17  Conn.  542 593 

Neville  v.  Kinney,  125  Ala.  149 483 

Newans  v.  Newans,  70  Iowa,  32 236 

Neweomb  v.  Williams,  9  Met.   (Mass.)    525 780 

Newcomb's  Lessee  v.  Smith,  5  Ohio,  448 899 

Newel  v.  Johns,  128  Ala.  584 496 

Newlove  v.  Woodward,  9  Neb.  505 809 

Newman  v.  Reed,  50  Ala.   297 924 

Newport  v.  Newport,  5  Wash.  113 555 

Newsom  v.  Thornton,  82  Ala.  402 578 

Newton  v.  Cox,  76  Mo.  352 762 

Nicholas  v.  Adams,  2  Whart.   (Pa.)   17 588 

Nichols  v.  Shepard,  63  N.  H.  391 729 

Nicholson's  Appeal,  20  Pa.  50 845 


1024  TABLE    OF    CASES. 

Page 

Nickerson  v.  Nickerson,  34  Or.  3 298 

Nicks  v.  Martindale,  Harp.  (S.  C.)   135 436 

Nicrosi  v.  Phillips,  91  Ala.  299 324 

Niles'  Estate,  In  re,  115  N.  Y.  547 765 

Nillson's  Estate,  In  re,    81  Neb.  809 50 

Nine  v.  Starr,  8  Or.  49 821 

Noble   v.   Jackson,   132   Ala.   230 688 

Noon's  Estate,  In  re,  49  Or.  293 497 

Non-she-po  v.  Wa-win-ta,  37  Or.  213 743,  933 

Nordquist,  Estate  of,  v.  Sahiboom,  114  Minn.  329 719 

Norfolk  State  Bank  v.  Schwenk,  51  Neb.  146 624 

Norman  v.  Qlney,  64  Mich.  533 543 

Normand's  Admr.  v.  Grognard,  17  N.  J.  Eq.  425 226,  414 

Normile  v.  Osbon,  207  Pa.  367 449 

Norris  v.  Towle,  54  N.  H.  290 321 

Norris'  Appeal,  71  Pa.  106 682,  684 

North  v.  Angelo,  75  Neb.  381 435 

v.  Joslin,    59   Mich.    624 834 

Northcott  v.  Lemery,  8  Or.  316 541 

Ncrthrup  v.  Markham,  16  Or.  173 327,  725 

Norton  v.  Norton,  5  Gush.  (Mass.)  524 552 

Norval  v.  Zinsmaster,  57  Neb.  158 854 

Noteware  v.  Colton,  95  Neb.  541 724 

Nugent  v.  Powell,  4  Wyo.  173 945,  947 

Null  v.  Jones,  6  Neb.  500 433 

Nunnally  v.  Becker,  52  Ark.  550 453 

0 

Oakes  v.  Gillian,  1  Neb.  Unof.  893 434 

O'Brien  v.  Bonfield,  213  111.  428 63 

O'Brien's  Estate,  63  Iowa,  622 215 

O'Brien's  Estate,  In  re,  80  Neb.  125 25,  867,  911,  932 

O'Connor  v.  Boylan,  49  Mich.  209 314 

v.  Madison,  98  Mich.   183 149 

v.  Walter,  83  Neb.  224 466 

O'Dea  v.  Washington  County,  3  Neb.  122 796 

Odell  v.  Culbert,  9  Watts  &  S.  (Pa.)  66 469 

v.  Eogers,  44  Wls.  136 162 

O'Donnell  v.  Herman,  42  Iowa,  60 431 

v.  Slack,  123   Cal.  285 444 


TABLE    OF    CASES.  1025 

Page 

O'Gorman  v.  Lindeke,  26  Minn.  93 772 

O'Hara  v.  Parker,  27  Or.   174 506 

Oh  Chow  v.  Brockway,  21  Or.  448 289 

Ohio  Oil  Co.  v.  Daughetee,  240  111.  361 622 

Ohm  v.  Superior  Court,  85  Cal.  545 315 

Oliver  v.   Harvey,  5   Or.  360 794 

Ollschlager's  Estate,  50   Or.   580 702 

Olston  v.  Oregon  Water  Power  Co.,  52  Or.  346 299,  305,  307 

Omaha  Coal  and  Coke  Co.  v.  Fay,  37  Neb.  68 800 

Oram   v.  Eothermel,  98  Pa.   300 357 

Orchardson  v.  Cofield,  171  111.  14 88 

Orcutt  v.  Orms,  3  Paige  (N.  Y.),  464 353 

Ordinary  v.  Barcalow,  36  N.  J.  L.  15 771 

v.  Heishon,   52   X.    J.   L.    15 928 

v.  Mortimer,  4  Rich.  (S.  C.)    271 770 

Ordroneaux  v.  Helie,  3  Sand.  Ch.  (N.  Y.)  512 418 

Oregon  v.  Simmons,  46  Or.  159 744 

Orgall  v.  Chicago  B.  &  Q.  R.  Co.,  46  Neb.  4 299 

Ormiston  v.  Olcott,  84  N.  Y.  339 346 

Orr  v.  Pennington,  83  Va.  268 91 

Gsburn's  Estate,  In  re,  36  Or.  8 331,  421,  688,  689,  695 

Osgood  v.  Lovering,  33  Me.  469 54 

O'Shea  v.  Bruning,  85  Neb.  156 41,  740 

Osman  v.  Traphagen,  23  Mich.  80 519,  544 

Ostheimer  v.  Single,  73  N.  J.  Eq.  539 561 

Owen  v.  Ward's  Estate,  127  Mich.  693 253 

Owens  v.  Bloomer,  15  Hun    (N.  Y.),  296 446 

v.  Owens,  100  N.  C.  240 743 

Oxsheer  v.   Nave,   90   Tex.   568 749 

Ozmun  v.  Galbraith,  131  Mich.  577 215 

P 

Pace  v.  Klink,  51  Ga.  220 732 

v.  Oppenheim,  12  Ind.  533 242 

Page  v.  Brach,  134  Mich.  51 134 

v.  Hodgdon,  63  Neb.  53 826 

v.  Page,  8  N.  H.  202 594 

v.  Williamson,  85  L.  T.,  N.  S.,  146 156 

Page's  Appeal,  71  Pa.  402 58 

Paige,  In  re,  62  Barb.  (N.  Y.)  476 162 

65 — Pro.  Ad. 


1026  TABLE    OF    CASES. 

Page 

Paisley's  Estate,  In  re,  91  Neb.  139 137,  138,  139,  146 

Pailthorp,  In  re,  160  Pa.  316 679 

Palacio   v.   Bigne,  15   Or.   142 358,  360 

Palmer  v.  Bradley,  152  Fed.  193 127 

v.  Green,  6   Conn.   19 422 

v.  Holford,  4  Buss.  403 40 

v.  Noyes,  45  N.  H.  174 567 

v.  Oakley,   2   Doug.    (Mich.)    433 825.  898 

v.  Palmer,  56  Mich.  293 261,  262 

v.  Sawyer,  78  Neb.  250 623,  627 

Palmer,  In  re,  183  N.  Y.  238 651 

Palmer's  Appeal,  1  Doug.  (Mich.)  422 287 

Parker  v.  Nichols,  17  Pick.  (Mass.)    Ill 542 

v.  Starr,  21  Neb.  680 820 

v.  Wells,    68    Neb.    647 439 

T.  Wright,   62   Ind.   398 500 

Parker's-  Estate,  In  re,  72  Neb.  601 496,  501,  520 

Parks  v.  Am.  Home  Miss.  Society,  62  Vt.  19 47 

v.  Norris,  101   Mich.   71 287,  363 

Parr  v.  United  States,  153  Fed.  462 604 

Parrish  v.  McNeil,  46  Neb.  727 456 

v.  Parrish,   33   Or.   186 603 

v.  Stone,  14  Pick.   (Mass.)   198 590 

Parsons  v.  Parsons,  66  Iowa,  754 133,  143 

Partridge    Estate,  In  re,  31  Or.  197 236,  243,  245,  695 

Patten's  Estate,  18  D.  C.  392 242 

Patterson  v.  Bell,  25  Iowa,  150 680,  707 

v.  Ellis,   11   Wend.    (N.  Y.)    259 46 

v.  Hamilton,  26   Hun   (N.  Y.),  665 483 

v.  Patterson,  13  Johns.  (N.  Y.)  379 445 

v.  Wadsworth,  89  N.  C.  407 303 

Patton  v.  Bostwick,  39  Mich.  218 472 

Patrick  v.  Patrick,  72   Neb.  454 559 

Paty  v.  Smith,  50  Cal.  153. 898 

Paulstm  v.  Hall,  39  Kan.  365 544 

Paup  v.  Sylvester,  22  Iowa,  375 . . . . 53 

Pearson  v.  Hopwey,  11  N.  J.  L.   18 606 

Pease  v.  Shirlock,  63  Vt.   622 318 

v.  Walker,  20  Wis.  603 271 

Peay  v.  Morrison's  Exrs.,  10  Gratt.   (Va.)   149 567 

v.  Scaife,  126  Wis.  205 216 


TABLE   OF   CASES.  1027 

Page 

Peck  v.  McKean,  45  Iowa,  18 451 

Peck's  Estate,  In  re,  31  N.  Y.  Supp.  407 708,  709 

Pecker  v.  Julius,  2  Browne  (Pa.),  31 460 

Peckham  v.  Portland  Electric  Co.,  33  Or.  458 299 

Pedan  v.  Robb,  45  Iowa,  18 451 

Peebles  v.  Watt's  Admr.,  9  Dana   (Ky.),  102 198 

Peeper  v.  Peeper,  53  Wis.  507 791 

Peeples'  Estate,  In  re,  38  S.  C.  41 234 

Pemberton  v.  Pemberton's  Heirs,  76  Neb.  669 465,  467 

v.  Perrin,  94  Neb.  718 948 

Pence  v.  Waugh,  135  Ind.  143 139 

Pence's  Appeal,  In  re,  11  Ohio  St.  290 745 

Penhallow  v.  Dwight,  7  Mass.  34 260,  719,  720 

Penniman   v.  French,  17   Pick.   (Mass.)    604 52 

v.  French,  2  Mass.  140 242 

People  v.  Buffalo  County   Commrs.,  4   Neb.   150 943 

v.  Burkhalter,  247  111.  600 642 

v.  De  La  Guerra,  24  Cal.  77 10 

v.  Dunlap,    13   Johns.    (N.   Y.)    437 769 

v.  Hunter,  89  111.  392 761 

v.  Kelley,   218   HI.   509 622,  641 

v.  Moir,  207  111.  180 642 

v.  Nelms,  241  111.  571 651 

v.  Olivera,  43  Cal.  492 434 

v.  Seeley,  146  111.  147 929 

v.  Wilcox,  22  Barb.   (N.  Y.)   178 825 

People's  Savings  Bank  v.  Look,  95  Mich.  7 552 

Pepper   v.   Thomas,   85   Ky.   539 607 

Pereival  v.  McVoy,  Dud.   (S.  C.)   337 568 

Perkins  v.  Perkins,  39  N.  H.  163 86,  130 

Perkin's  Estate  v.  Hollister,  59  Vt.  348 347,  353 

Perrin  v.  Calhoun  Co.  Circuit  Ct.,  49  Mich.  342 391 

v.  Lepper,  72  Mich.  454 684,  685 

Perry  v.  Wooten,  5  Humph.  (Tenn.)   524 353 

Perry  Livestock  Co.  v.  Biggs,  4  Neb.  Unof.  440 530,  629 

Peter  v.  Beverly,  10  Pet.    (U.  S.)    532 325,  708,  709 

Peters  v.  Phillips,  19  Tex.  70 392 

Peterson  v.  Bauer,  76  Neb.  652 467 

Peterson's  Estate,  In  re,  76  Neb.  411 125 

Pettes  v.  Bingham,  10  N.  H.  514 144 

Pettit  v.  Black,  13  Neb.  142 14,  116 


1028  TABLE    OF    CASES. 

Page 
Pflueger  v.  State,  46  Neb.  493 133 

Phillips   v.   McCombs,  53   N.   Y.   494 580 

v.  Phillips,    13   S.   D.   231 527 

Phoenix  Ins.  Co.  v.  McEvony,  52  Neb.  566 33 

Pick  v.  Strong,   26  Minn.  303 538 

Pickens  v.  Davis,  134  Mass.  252 37 

Pickering  v.  Pendexter,  46  N.  H.  69 213,  214 

Pickett  v.   Gilmer,   32  La.   Ann.   991 770 

Pickett's  Will,  49  Or.  127 61,  62,  82,  117,  130,  133 

•  Pico's  Estate,  In  re,  56  Cal.  413 216 

Pierce  v.  Atwood,  64  Neb.  92 455 

Pierce  v.  Irish,  31  Me.  254 703 

v.  Pierce,  38  Mich.  412 84,  91,     92 

v.  Prescott,  128  Mass.   140 913 

Pigg  v.  Carroll,  89  111.  205 597 

Piggotta's  Case,  5  Coke,  29a 185 

Pike's  Estate,  45  Wis.  391 213 

Pirn  v.  Downing,  11  Serg.  &  R.   (Pa.)   66 843 

Pinkerton  v.  Sergeant,  102  Mass.  568 719,  720 

Pinkham   v.   Pinkham,   55   Neb.    729 607 

Pinneo  v.  Goodspeed,  120  111.  524. 572 

Piper  v.  Piper,  34  N.  H.  56-3 281 

Pitman  v.  Pitman,  81  Kan.  643 782 

Pitt  v.  Moore,  99  N.  C.  85 362 

Pitts  v.  Hale,  3  Mass.   321 797 

Plaisance's  Estate,  Myr.  Prob.    (Cal.)    117 213 

Platt  v.  Sinton,  37   Ohio  St.  353 42 

Plimpton  v.  Fuller,  11  Allen    (Mass.),   139 5^7 

Plowman  v.  Henderson,  59  Fla.  559 213 

Plunkett's  Estate,  In  re,  33  Or.  416 708,  800,  801,  804 

Pollard  v.  McKenney,  69  Neb.  742 38,     79 

Pool  v.  Buffum,  3  Or.  438 61 

Pooler  v.  Chrisman,  145  111.  405 137 

Poor  v.  Horton,  15  Barb.  (N.  Y.)  485 606 

Pope  v.  McEndree,  75  Neb.  550 249 

Pope's  Estate,  In  re,  75  Neb.  550    792 

Pope's  Estate,  In  re,  83  Neb.  723 42 

Poppleton  v.  Jones,  42  Or.  26 260 

Porter  v.  Dunn,  131  N.  C.  314 449 

v.  Lazear,  109  IT.  S.  84 604 

v.  Long,  124  Mich.  584 632 


TABLE    OF    CASES.  1029 

Page 

Porter  v.  Parker,  68   Xeb.   338 , 473 

v.  Powell,  79  Iowa,  151. 821 

v.  Throop,   47   Mich.    213 145,  158 

Portis   v.   Cummings,   39   Tex.    139 676 

Portland  Trust  Co.  v.  Beatty,  32  Or.  305 38 

Possenecker  v.  Entemann,  64  Neb.  409 503 

Post  v.  Mason,   91  N.  Y.   539 441 

Potter  v.  Baldwin,  133  Mass.  427 148 

v.  Jones,   20   Or.   239 88,     89 

v.  Potter,  43  Or.  148 608,  715 

v.  State,  23  Ind.   607 927 

Potter's  Appeal,  53  Mich.  106 144 

Powell  v.  Monson  &  Bnmfield  Mfg.  Co.,  3  Mason,  347 616 

v.  Powell,   52   Mich.   432 917 

Power  v.  Cassady,  79  N.  Y.  602 604 

Powers  v.  Powers,  79  Xeb.  680 124,  455,  795,  799 

Prante  v.  Lompe,  79  Neb.  377 834,  835,  839 

Prather  v.   Hart,   17  Xeb.   598 7,  726 

v.  McClelland,   76   Tex.   574 84 

Pratt  v.  Pierce,  36  Me.  448 748 

v.  Wright,   13   Gratt.    (Va.)    175 841 

Prebble  v.  Longfellow,  48  Me.   279 856 

Prescott  v.  Prescott,  7  Met.  (Mass.)   145 582 

Price,  In  re,  67  X.  Y.  231 746 

v.  Lancaster    County,    18    Neb.    199 427 

v.  Mace,  47  Wis.  23 413 

Price's  Estate,   81  Pa.   263 690 

Pritehard  v.  Norwood,  155  Mass.  339 319 

Pritts  v.  Eitchey,  29  Pa.  71 606 

Probate  Court  v.  Angell,  14  R.  I.  495 771 

v.  Hazzard,  13  R.  I.  9 782 

v.-Kent,  49  Vt.  380 769 

v.  Kimball,   42  Vt.   320 767 

v.  Mathews,   6   Vt.   269 785 

v.  Strong,    27   Vt.    202 762 

Probate  Judge  v.  Mathes,  60  X.  H.  433 911 

Proctor  v.  Proctor,  141  Mass.   164 66 

v.  Wannamaker,  1  Barb.  Ch.   (X.  Y.)   302 18 

Protestant   Episcopal  Church   v.  Eells,  68  Vt.  497 164 

Prugh  v.  Portsmouth  Savings  Bank,  4S  Xeb.  414 628,  629 

Pruitt  v.  Mulderink,  39  Or.  335 426,  427 


1030  TABLE   OF   CASES. 

Page 
Pruza  T.  Everett,  78  Neb.  250 251,  319 

Pryor  v.  Downey,  50  Cal.  388 484,  536 

Pugh  v.  Bell,  2   T.  B.   Mon.    (Ky.)    125 605 

Pulling  v.  Durf ee,  85  Mich.  34 277 

Purcell  v.  Lang,  108  Iowa,  198 603 

Purdin  v.  Archer,  4  S.  D.  54 434 

Purdy  v.  Howe,  134  111.   298 137 

Pursley  v.  Hayes,  22  Iowa,  11 234,  924,  928 

Putnam  v.  Pitney,  45  Minn.  242 409,  418 

v.  Russell,  17  Vt.  54 409 

Pyatt  v.  Pyatt,  44  N.  J.  Eq.  391 912,  925 

Q 

Quackenbush  v.  Ehle,  5  Barb.   (N.  Y.)   469 437 

Quigley  v.  Arnold,  22  111.  App.  269 451 

R 

Radovich's  Estate,  In  re,  74  Cal.  536 220 

Rakes  v.  Brown,   34  Neb.   304 478 

Ralphs  v.  Hensler,  97  Cal.  296 302 

Ralston  v.  Wood,  15  111.  159 v. 784 

Ramp  v.  McDaniel,  12  Or.  108 216,  231,  233,  238 

Ramsay  v.  Parker,  20  Wis.  507 853 

v.  Ramsay,    196   111.    179 416 

v.  Thompson,  71  Md.  315 839 

Ramsdill,  In  re,  190  111.  492 645 

Rannalls  v.  Rowe,  22  C.  C.  A.  177 718 

Randolph  v.  Hughes,  89  N.  C.  428 162 

Rank  v.  Hanna,  6  Ind.  80 805 

Rankin   v.   Rankin,   61   Mo.    295 138 

Raper  v.  Dunn,  53  Or.   203 813 

Rapp's  Estate  v.  Elgutter,  71  Neb.  108 347,  689,  690,  691 

Ratcliff  v.  McGee,  165  Mo.  461 253 

Raudenbaugh  v.  Shelley,  6  Ohio  St.  307 65 

Rawson  v.  Piper,  34  Me.  98 778 

Ray  v.  Loper,  65  Mo.  470 597 

Raymond  v.  Inhabitants  of  Sawyer,  37  Me.  406 863 

Rayner  T.  Pearsall,  3  Johns.  Ch.  (N.  Y.)  578 330 

Rea  v.  McEachron,  13  Wend.   (N.  Y.)  465 519 

Reading  v.  Wilson,  38  N.  J.  Eq.  446 862 


TABLE    OF    CASES.  1031 

Page 

Rearich  v.  Swinehart,  11  Pa.  233 380 

Rebar's  Estate,  142  Pa.  208 570 

Redmond  v.  Burroughs,  63  N.  C.  242 56 

Eeed,  In  re,  19  Neb.  397 392,  395 

v.  Emory,   1  Serg.   &   R.    (Pa.)    339 569 

v.  Whipple,  140  Mich.  7 180,  181 

Reed's  Will,  In  re,  20  N.  Y.  Supp.  91 144 

R«id  v.  Borland,  14  Mass.  208 104 

Reiger  v.  Schaible,  81  Neb.  58 277,  626,  715,  716 

Reinhart    v.   Seaman,   208   111.   448 515 

Reischick  v.  Rieger,  68  Neb.  348 734 

Relston  v.  Russell's  Admr.,  15  Mo.  356 571 

Renaud  v.  Pageot,  102  Mich.  568 149 

Renfro  v.   White,  23   Ark.    195 240 

Renner  v.  Ross,  111  Ind.  269 . . . .- 484 

Reynolds,  In  re,  11  Hun    (N.  Y.),  41 843 

v.  McMullen,  55  Mich.  568 404,  412 

v.  Reynolds'  Exrs.,  16  N.  Y.  257 555 

v.  Robinson,    64   N.    Y.   589 449 

v.  Wilson,  15  111.  394 512 

Rhea  v.  Brown,  4  Neb.  Unof.  461 793,  799,  803 

Rhodes  v.  Childs,  64  Pa.  18 588 

v.  Rhodes,   137  Mass.   343 43 

v.  Rhodes,  3  Sand.  Ch.  (N.  Y.)  279 466 

Ribble  v.  Furmin,  71  Neb.  108 429,  430,  470,  472,  792,  797,  806,  818 

Rice,  In  re,  42  Mich.  528 826,  872 

v.  Rice,  50  Mich.  448 84,     89 

v.  Tilson,   14   Wyo.   101 348 

Rice's  Lessee  v.  White,  8  Ohio  St.  216 262 

Richards  v.  Adamson's  Estate,  43  Iowa,  248 573 

V.Humphreys,    15    Pick.    (Mass.)    133 586 

Richardson  v.  Borden,  43  Miss.   71 261 

v.  Butler,  82  Cal.  174 486,  502 

v.  Hall,  124  Mass.  228 559 

v.  Hazelton,   191   Mass.   108 776 

v.  Johnson    (Neb.),  151  N.  W.  314 714 

v.  Orth,  40  Or.  252 465 

v.  Richardson,    49    Mo.    29 865 

v.  Welch,  47  Mich.  309 605 

Richardson  County  v.  Smith,  25  Neb.  767 . .- 727 

Richmond,  Appeal  of,  59  Conn.  226 143 


1032  TABLE    OF    CASES. 

Page 

Richter  v.  Leiby's  Estate,  101  Wis.  434 764 

Riddell  v.  Kiddell,  70  Neb.  472 453,  454,  495 

Riddler  v.  Riddler,  93  Iowa,  347 448 

Riggs  v.  Riggs,  135  Mass.  238 64 

Rine   v.   Rine,   91   Neb.   248 323 

Ristine  v.  Kurtz,  97  Iowa,  338 562 

Ritchie  v.  Seeley,  76  Neb.  164 298 

Rittgers  v.  Rittgers,  56  Iowa,  218 610 

Rivard  v.  Rivard,   109  Mich.   Ill 145 

Rivenett  v.  Borquin,  53  Mich.  10 56,  57 

Rivers  v.  Rivers  Exrs.,  8  Desaus.  (S.  C.)  190 465 

Roach,  In  re,  139  Cal.  17 491 

Roach's  Estate,  In  re,  50  Or.  197 286,  327,  701,  804,  870 

Roane  v.  Hollingshead,  76  Md.  369 102 

Robbins    v.   Burridge,    128  Mich.   25 784 

v.  Coryell,  27  Barb.   (N.  Y.)   556 62 

v.  Robbins,  10  Ky.  Law  Rep.  209 43 

Roberts  v.  Flannagan,  21  Neb.  509 116,  160 

v.  Greer,   22   Nev.   318 624 

v.  Johns,  16  S.  C.   171 676 

v.  Lewis,   153  U.  S.  367 44 

v.  Messinger,    134   Pa.   298 263 

v.     Schulz,  45  Tex.  184 921 

v.  Weadock,   98   Wis.   400 776 

Robertson  v.  Epperson,  78  Neb.  279 846 

v.  Johnson,  56  Tex.  62 542 

v.  McGeoch,  11  Paige  Ch.  (N.  Y.)  640 187 

v.  Robertson,  120  Ind.  333 206 

Robertson,  In  re,  Estate  of,  86  Neb.  490 627,  628,  861 

Robinett's  Appeal,  36  Pa.  174 392 

Robinson  v.   Adams,   62   Me.   369 83 

v.  Appleton,  124  111.  276 297 

v.  Hersey,  60  Me.  225 864 

v.  Hodge,  117  Mass.  222 478 

v.  McAffee's  Estate,  59  Mich.  375 449 

v.  Mclver,  63  N.  C.  649 597 

v.  Pebworth,  71  Ala.  240 919 

v.  Ring,  72  Me.  140 588 

v.  Robinson,  22  Iowa,   427 924 

T.  Tower,  95  Neb.  198 435 

v.  Zollinger,  9  Watts   (Pa.),   169 847 


TABLE  OF  CASES.  1033 

Page 

Robinson,  In  re,  6  Mich.  137 577 

Rockport  v.  Walden,  54  N.  H.  167 348 

Roderigas  v.  East  River  Sav.  Inst.,  63  N.  Y.  460 231 

Roe  v.  Sweezey,  10  Barb.  (N.  Y.)   247 484 

Roehl  v.  Pleasant,  61  Tex.  45 530 

Rogers  v.  Dickey,  117  Ga.   819 513 

v.  Marston,    80   Me.    404 575 

v.  Rediek,  10  Neb.  322 789,  807 

v.  Rogers,  3  Wend.  (N.  Y.)  503 505,  561 

v.  Zook,  86  Ind.  237 334 

Rohlff  v.  Estate  of  Snyder,  73  Neb.  524 513,  516 

Roland  v.  Srack,  29  Pa.  125 595 

Rollwagen  v.  Rollwagen,  63  N.  Y.  504 91,  140 

Root's   Will,   81   Wis.   263 577 

Rose  v.  Oliver,  32  Or.  447 465 

Rosenthal  v.  People,  211  111.  306 641 

Ross  v.  Barr  (Ky.),  53  S.  V.  658 316 

v.  Boardman,   23   Hun    (N.   Y.),   537 602 

v.  Ewer,  3  Atk.   163 126 

v.  Miner,   67  Mich.  410 145 

Rothrock  v.  Rothrock,  22  Or.  551 83,  85 

Rowe  v.  Griffiths,  57  Neb.  488 897 

Rowell  v.  Rowell,  122   Wis.  1 364 

Rowland  v.  Carroll,  81  HI.  224 485 

v.  Thompson,  73  N.  C.  419 919 

v.  Warner,   10   Or.   129 47 

Rowley  v.  Towsley,  53  Mich.  229 919 

Royer  v.  Potter,  91  Neb.  280 50 

Royer's  Appeal,  11  Pa.  36 919 

Royston  v.  Royston,  29  Ga.  82 867 

Rubottom  v.  Morrow,  34  Ind.  202 352 

Ruby  v.  State,  55  Md.  484 772 

Rudolph   v.  Malone,   104  Wis.  470 765 

v.  Underwood,  88  Ga.  664 530 

Ruggles  v.  Sherman,  14  Johns.  (N.  Y.)  446 262,  351 

Runkle  v.  Gates,  11  Ind.  95 96,  100 

Runyan  v.  Winstock,  55  Or.  203 82,  609 

Runyon,  In  re,  125  Cal.  195 652 

Ruohs  v.  Backer's  Next  Friend,  6  Heisk.  (Tcnn.) 395,  848 

Rusling  v.  Rusling,  36  N.  J.  Eq.  603 148 

Russell  v.  Close's  Estate,   79   Xeb.  318 452 


1034  TABLE   OF   CASES. 

Page 

Russell   v.   Close's   Estate,   83   Neb.   252 452,  456 

v.  Lewis,  3  Or.  387 3,  17 

v.  Hoar,  3  Met.  (Mass.)  187 252 

v.  Minton,  42  N.  J.  Eq.  123 583 

Butenic  v.  Hamakar,  40  Or.  451 249,  251,  677,  698,  710,  775 

Eutherf ord  v.  Thompson,  14  Or.  239 289 

Ryan  v.  Allen,  120  111.  648 52 

v.  Ferguson,  3  Wash.  356 544 

Ryder  v.  Flanders,  30  Mich.  336 542,  700 

Ryder's  Estate,  59  Hun  (N.  Y.),  618 450 

Ryno's  Exr.  v.  Ryno's  Admr.,  27  N.  J.  Eq.  522 166 

s 

Saddington  v.  Hewitt,  70  Wis.  240 293 

Sain  v.  Bailey,  90  N.  C.  566 371 

St.  James  Orphan  Asylum  v.  McDonald,  76  Neb.  630 156 

v.  Selby,  60  Neb.  696 38,  50,  51 

St.  Paul  Trust  Co.  v.  Kitson,  60  Minn.  408 696 

v.  Mintzer,  65  Minn.  124 45 

Sallady  v.  Bainhill,  29  Iowa,  555 537 

Sammons  v.  Higbie's  Estate,  103  Minn.  448 278 

Sanders  v.  Dodge,  140  Mich.  356 321 

San  Roman  v.  Watson,  54  Tex.  254 253 

Sanborn  v.  Goodhue,  28  N.  H.  348 303,  353 

Sanderson's  Admrs.  v.  Sanderson,  17  Fla.  820 461 

Sanderson's  Estate,  In  re,  74  Cal.  199 676 

Sanford's  Estate,  In  re,  90  Neb.  410 637,  639,  644,  663 

Sankey  v.  Cook,  82  Iowa,  125 150 

Sappingfield  v.  Sappingfield,  67  Or.  156 120 

Sargeant's  Estate  v.  Kimball's  Estate,  37  Neb.  321 461 

Sasse  v.  Sasse,  93  Neb.  341 496,  497 

Satorelli  v.  Ezagini,  64  Misc.  Rep.  (N.  Y.)  115 308 

Saulsbery,  In  re,  2  Johns.  Ch.  (N.  Y.)  347 857 

Saunders  v.  Saunders,  109  Va.  191 40 

Savage  v.  McCorkle,  17  Or.  48. 863 

v.  Savage,  51  Or.  167 44 

Saxe  v.  Saxe,  113  Wis.  557 186 

Saxon  v.  Cain,  19  Neb.  488 516,  518,  552 

Sayers  y.  Mead,  171  Pa.  349 495 

Saylor  v.  Simpson,  45  Ohio  St.  141 18 


TABLE    OF    CASES.  1035 

Page 

Scarf  v.  Aldrich,  97  Cal.  360 871,  895 

Scarrett,  In  re,  76  Mo.  565 820 

Schaale  v.  Wasey,  70  Mich.  414 509 

Schaberg  v.  McDonald,  60  Neb.  493 437 

Schafer  v.  Eneu,  54  Pa.  304 54 

Schee  v.  McQuiliken,  59  Iowa,  269 860 

Scheib  v.  Thompson,  23  Utah,  564 912 

Schemmerhorn  v.  Merritt,  123  Mich.  310 64 

Schenkl  v.  Danal,  118  Mass.  236 259 

Scherer   v.   Brown,   21  Colo.  481 101 

v.  Ingerman,  110  Ind.  428 4S8 

Scheuer,  In  re,  31  Mont.  606 916 

Schick  v.  Stuhr,  120  Iowa,  392 835 

v.  Whitcomb,  68  Neb.  784 598 

Schiefflin  v.  Stewart,  1  Johns.  Ch.  (N.  Y.)  620 685 

Schiffer  v.  Pruden,  64  N.  Y.  47 559 

Schill  v.  Reisdorf ,  88  111.  411 762 

Schillinger  v.  Bawek,  135  Iowa,  131 60 

Schimpf   v.   Rodewald,  62   Neb.  105 43 

Schmaunz  v.  Goss,  132  Mass.  141 43 

Schmidt's  Succession,  125  La.  Ann.  1065 147 

Schneider  v.  Estate  of  Brier,  129  Wis.  446 446 

v.  Vosburg,  143  Mich.  476 86 

Schnitter  v.  McManaman,  85  Neb.  337 43 

Schoenberger  v.  Institution  etc.,  28  Pac.  465 119 

Schoenich  v.  Reed,  8  Mo.  App.  356 572 

Schoonmaker  v.  Clearwater,  41  Barb.  (N.  Y.)  200 10 

Schroeder  v.  State,  41  Neb.  745 854 

v.  Superior  Court,  70  Cal.  343 244 

v.  Wilcox,  39  Neb.  136 325,  327,  539,  540 

Schroeder's   Estate,   Myr.   Prob.    (Cal.)    57 497 

Schulz  v.  Pulver,  11  Wend.  (N.  Y.)  361 257,  303,  351,  352 

Schurmier  v.  Connecticut  Mut.  Life  Ins.  Co.,  171  Fed.  1 459 

Schuyler  v.  Hanna,  31  Neb.  307 636 

Schwab   v.   Pierro,   43    Minn.   520 449 

Scofield  v.  Churchill,  71  N.  Y.  565 765,  784,  780 

v.  "Walker,  58  Mich.  96 91,  93 

Scott  v.  Crews,  72  Mo.  261 249,  685 

v.  Flowers,  61  Neb.  620 2 

v.  Harris,  113  111.  454 195 

v.  Rohman,  48  Neb.  618 473 


1036  TABLE    OF    CASES. 

Page 
Scott  v.  Scott,  70  Pa.  244 458 

v.  Terry,  37  Miss.  65 728 

Scott's  Estate,  In  re,  76  Neb.  28 804 

Scott's  Exrs.  v.  Gorton's  Exrs.,  14  La.  Ann.  Ill 515 

Scribner  v.  Lane,  2  Paige  (N.  Y.),  147 63 

Sears  v.  Daly,  43  Or.  306 342 

v.  Shafer,  6  N.  Y.  268 147 

v.  Terry,  26  Conn.  273 537 

Seaver  v.  Lewis,  14  Mass.  83 555 

Secchi,  In  re  Estate  of,  Minors,  Myr.  Prob.  (Cal.)  225 872 

Second  National  Bank  v.  Williams,  13  Mich.  282 590 

Secord  v.  Secord,  61  Neb.  615 168 

Security  Co.  v.  Bryant,  52  Conn.  311 586 

Security  Trust  Co.  v.  Black  River  Nat.  Bank,  187  U.  S.  211 459 

Sedgwick  v.  Minot,  6  Allen  (Mass.),  171 728 

Seebrock  v.  Fedewa,  30  Neb.  424 118,  123,  130,  156,  468 

Seery  v.  Curry,  26  Neb.  353 629 

Seguin's  Appeal,  103  Pa.  139 870 

Segur,  In  re,  71  Vt.  224 88 

Seibert's  Appeal,  110  Pa.  329 584,  642 

Seidl's  Estate,  In  re,  64  Or.  325 518 

Seiker's  Estate,  In  re,  89  Neb.  216 122 

Seiter  v.  Straub,  1  Dem.  Sur.  (N.  Y.)  264 142 

Sellars  v.  Foster,  27  Neb.  118 672 

Senseman's  Appeal,  21  Pa.  331 830 

Severance  v.  Carr,  43  N.  H.  65 146 

Severens  v.  Gerke,  3  Saw.  353 898 

Sewall  v.  Buckley's  Distributees,  54  Ala.  592 785 

Seward  v.  Didier,  16  Neb.  58 538,  827,  895,  920,  928 

Seymour  v.  Eicketts,  21  Neb.  240 539 

Shacklett  v.  Homer,  87  Neb.  146 43 

Shadden  v.  Hembree,  17  Or.  14 38 

Shaeffer  v.  Weed,  3  Gilm.  (111.)  511 605,  615 

Shaffer's  Appeal,  46  Pa.  131 352 

Shailler  v.  Bumstead,  99  Mass.  112 156 

Shallcross  v.  Finden,  3  Ves.  Sr.  738 554,  555 

Shalter's  Appeal,  43  Pa.  83 763 

Shandoney,  In  re,  83  Cal.  387 859,  912 

Shanks  v.  Klein,  104  U.  S.  18 362 

v.  Seamonds,  24  Iowa,  131 876 

Shannon's  Heirs  v.  Dillon,  8  B.  Mon.  (Ky.)  389 562 


TABLE    OF    CASES.  1037 

Page 

Sharmer  v.  Mclntosh,  43  Neb.  509 453 

Sharp  v.  Citizens'  State  Bank,  70  Neb.  758 323 

T.  Sharp,  76  Ala.  312 424 

v.  Sharp,  6  Bing.  634 42 

Shaw  v.  Camp,  163  111.  144 127 

v.  Spencer,  100  Mass.  382 „ 334 

Shaw,  Appellant,  81  Me.  207 411 

Shawhan  v.  Loff er,  24  Iowa,  217 230 

Shearon  v.  Goff,  95  Neb.  417 627,  62£ 

Sheedy  v.  Sheedy,  36  Neb.  373 804 

Sheets  v.  Peabody,  6  Blackf .  120 352,  354 

Sheets'  Estate,  In  re,  52  Pa.  265 43 

Shelby  v.  Creighton,  65  Neb.  485 333,  706 

v.  Shelby,  1  B.  Mon.  (Ky.)  266 737 

Sheldon  v.  Dow,  1  Dem.  Sur.  (N.  Y.)  503 85 

v.  Warner,  58  Mich.  444 458 

Shelleberger  v.  Ransom,  41  Neb.  631 296,  743 

Shelley's  Case,  1  Coke,  104a 151 

Shelley's  Case,  In  re,  73  Cal.  594 54 

Shelton  v.  Hadlock,  62  Conn.  143 422 

Shepard  v.  Hanson,  9  N.  D.  249 862 

Shephard  v.  Evans,  9  Ind.  260 859 

v.  Parker,  35  N.  C.  103 693 

v.  Saltzman,    34    Or.    43 558 

Shepherd  v.  Guernsey,  9  Paige  (N.  Y.),  357 586 

Sherburne  v.  Goodwin,  44  N.  H.  271 334 

Sherman  v.  Ballou,  8  Cow.  (N.  C.)  304 825 

v.  Page,    85    N.    Y.    123 257 

v.Sherman,    4    Allen    (Mass.),    392 579 

v.  Willett,  42  N.  Y.   146 330 

Sherwood  v.  SmiLh,  23  Conn.  516 595 

Shields  v.  McDowell,  82  N.  C.  137 484 

Shipman  v.  Butterfield,  47  Mich.  487 219 

Shirley  v.  Bflsh,  16  Or.  1 795 

Shoemaker  v.  Brown,  10  Kan.  385 470 

Shoemate  v.  Lockridge,  53  111.  503 498 

Shoonmaker  v.  Clearwater,  14  Barb.  (N.  Y.)  200 10 

Short's  Estate,  In  re,  16  Pa.  63 638 

Shorter  v.  Frazer,  64  Ala.  74 920 

Shreve  v.  Shreve,  176  Mass.  456 722 

Shriver,  Appeal  of,  12  Atl.    (Pa.)   553 362 


1038  TABLE   OP   CASES, 

Page 

Shroyer  T.  Richmond,  1(5  Ohio  St.  455 898,  930 

Shumway  v.  Holbrook,  1  Pick.  (Mass.)   115 117 

Shurtleff  v.  Rile,  140  Mass.  214 858,  870 

Siddall  v.  Clark,  89  Cal.  321 308 

Sidle  v.  Anderson,  45  Pa.  464 348 

Sigourney  v.  Sibley,  21  Pick.  (Mass.)  101 163 

Sill  v.  Sill,  31  Kan.  248 718 

Silverthorne's  Will,  In  re,  68  Wis.  372 85 

Sim  v.  Russell,  90  Iowa,  656 139 

Simmons  v.  Hutchinson,  231  111.  508 576,  577 

v.  Leonard,  91  Tenn.  183 66 

v.  Simmons'  Admr.,  33  Gratt.  (Va.)  451 288 

Simon's  Will,  In  re,  55  Conn.  239 689 

Simonds  v.  Partridge,  154  Mass.  500 456,  457 

Simonton  v.  Brown,  72  N.  C.  46 483 

Simpson  v.  Cureton,  79  N.  C.  112 278 

v.  Durbin,  68  Or.  518 130 

v.  Kelso,  8  Watts   (Pa.),  252 782 

v.  Patten,  4  Johns.  (N.  Y.)  422 348 

Singleton  v.  Love,   1   Head    (Tenn.),  357 920 

Singree  v.  Welch,  32  Ohio  St.  320 607 

Skidmore  v.  Davies,  10  Paige  (N.  Y.),  316 851 

Skinner  v.  American  Bible  Society,  92  Wis.  209 67 

Skinner's   Will,   40    Or.   579 66,  89,  125,  132 

Slack  v.  Slack,  123  Mass.  443 878 

Slagle  v.  Entrekin,  44  Ohio  St.  637 783 

Slate  v.  Henkel,  45  Or.  434 289 

Slate's  Estate,  40  Or.  352 211 

Slauter  v.  Favorite,  107  Ind.  291 869 

Sloan  v.  Sloan,  21  Fla.  589 412 

Slusher  v.  Hammond,  94  Iowa,  512 886 

Smallman  Y.  McDonald,  18  Or.  367 724 

Smelser  v.  Blanchard,  15  La.  Ann.  254 512 

Smith  v.  Barr,  83  Minn.  534 540 

v.  Bell,  6  Pet.  (U.  S.)  68 39 

v.  Culyer,  78  Ga.  654 352,  771 

v.  Drake,  23  N.  J.  E'q.  302 515 

v.  Dutton,  16  Me.  308 481 

v.  Ferguson,  90  Ind.  229 518 

V.  Flournoy's  Admr.,  47  Ala.  345 486 

v.  Gentry,  16  Ga.  31 2C2 


TABLE   OF   CASES.  1039 

Page 

Smith    v.    Grady,   68    Wis.    215 442 

v.  Guild,  34  Me.  443 165 

v.  Gummere,  39  Wis.  27 ?64 

v.  Haynes,  202  Mass.  531 40,  583 

v.  Jackson,   115   Mich.    192 577 

v.  James,  72  Iowa,  516 156 

v.  Lambert,  30  Me.  137 774 

v.  Perry,  52  Neb.  738 452 

v.  Pierce,  65  Vt.  200 468 

v.  Ryan's  Estate,  136  Iowa,  335 34 

T.  Scholtz,  68  N.  Y.  41 512 

v.  Sherman,  4  Cush.   (Mass.)   408 409 

v.  Smith,  76  Ind.  236 336 

v.  Smith,  64  Neb.   673 ,. 47 

v.  Smith,  4  Johns.  Ch.  (N.  Y.)   281 869 

v.  Smith,  48    N.   J.    Eq.    566    88,  131 

v.  Smith's  Admr.,  27  N.  J.  Eq.  445 478,  590 

v.  Smith's  Admr.,  28  N.  J.  L.,  208 465 

v.  Whiting,  55  Or.  398. .  .478,  480,  483,  485,  489,  495,  504,  534,  539 

v.  Wyckoff,  11  Paige  (N.  Y.),  49 555 

Smith's  Estate,  In  re,  43  Or.  595 483,  503 

Smith's  Will,  In  re,  52  Wis.  543 65 

Smithers'   Exrs.,   9   Bush    (Ky.),   230 718 

Smock  T.  Reichwein,  117  Ind.  194 492 

Smullin  v.  Wharton,  73  Neb.  677 49 

v.  Wharton,  83  Neb.  328 755 

Snow    v.    Snow,    111    Mass.    389 727 

v.  Snow,  49  Me.  159 297 

Snyder  v.  Burk,  84  Ala.  503 105 

Snyder,  Estate  of,  73  Neb.  524 516 

Solt  v.  Anderson,  63  Neb.  734 402 

v.  Anderson,  67  Neb.  103 263,  389,  390,  395,  397,  402 

Somes  v.  Skinner,  16  Mass.  348 859 

Sorells  v.  Collins,  110  Ga.  518 590 

Sorenson  v.  Sorenson,  56  Neb.  729 224,  452 

v.  Sorenson,  68  Neb.  483 748,  749 

Soule  v.  Benton,  44  Vt.  309 4C9 

South  Omaha  v.  Sutliff,  72  Neb.  746 672 

Southern  Marble  Co.  v.  Stegall,  90  Ga.  326 878,  900 

Southern  Oregon  Co.  v.  Coos  County,  30  Or.  250 809 

v.  Gage,  31  Or.  590 809 


1040  TABLE    OF    CASES. 

Page 

Southworth  v.  Adams,  11  Biss.  256 105 

Soutter,  In   re,  105  N.  Y.  514 676 

Sowell  v.  Sowell's  Admr.,  40  Ala.  243 162 

Sowles  v.  Hall,  73  Neb.  55 688 

Spalding  v.  Brent,  3  Md.  Ch.  411 918 

v.  Wakefield's  Estate,  53  Vt.  660 351 

v.  Warren's  Estate,  52  Vt.  29 522 

Spalding,  In  re,  163  N.  Y.  607 641,  642 

Spangler  v.  Newman,  239  Ind.  616 577 

Sparhawk  v.  Buel's  Admr.,  7  Vt.  41 706 

v.  Sparhawk,  10  Allen  (Mass.),  155 63 

Sparrow,  Succession  of,  39  La.  Ann.  676.  .- 238,  239,  250 

Spear  v.  Spear,  9  Rich.  Eq.  (S.  C.)  184 869 

Speelman  v:  Culbertson,  15  Ind.  441 334 

Speese's  Heirs  v.  Shores,  81  Neb.  593 748 

Speich  v.  Tierney,  56  Neb.  574 45,  622 

Speidel's  Appeal,  107  Pa.  18 277 

Spellman  v.  Dowse,  79  111.  66 899 

Spencer  v.  Higgins,  22  Conn.  539 57 

v.  Scoville,  79  Neb.  87 43,  47 

v.  Wolfe,  49  Neb.  8 215,  217,  219,  223 

Sperry  v.  Fanning,  80  111.  371 862 

Spitley  v.  Frost,  15  Fed.  299 791 

Sprague  v.  Moore,  130  Mich.  92 597 

Sprague's  Estate,  In  re,  125  Mich.  387 98 

Sprigg  v.  Stump,  8  Fed.  207 834,  878 

Springer  v.  Jenkins,  47  Or.  598 289 

Springer's  Appeal,  29  Pa.  208" 260 

Spurgin  v.  Bowers,  82  Iowa,  187 540 

Staats  v.  Wilson,  76  Neb.  204 533 

Stack  v.  Eoyce,  34  Neb.  833 481,  489,  490,  503,  541 

Stackhouse  v.  Horton,  15  N.  J.  Eq.  202 55 

Stacy  v.  Thrasher,  6  How.  (U.  S.)  57 458 

Stafford,  In  re,  3  Misc.  Eep.  (N.  Y.)  106 864 

Staigg  v.  Atkinson,  144  Mass.  564 718 

Stansburry  v.  Bertron,  7  Watts  &  S.  (Pa.)  364 925 

Stanton  v.  Weatherax,  16  Barb.  (N.  Y.)  2o9 87 

Stanton's  Estate,  In  re,  152  Mich.  491 644 

Staples  v.  Fairchild,  3  N.  Y.  41 537 

Stark  v.  Gamble,  53  N.  H.  605 917 

Starkey,  Appeal  of.  61  Conn.  199 448 


TABLE   OF   CASES.  1041 

Page 
Starr  v.  Starr,  9  Ohio  St.  74 590 

Starrett   v.  Jameson,  29  Me.  504 910,  913 

State  v.  Alston,  94  Tenn.  674 637 

v.  Branch,  134  Mo.  592 780 

v.  Brown,   80   Ind.   425 767,  772 

v.  Brown,  93  N.  C.  81 927 

v.  Carpenter,  129  Wis.  189 631 

v.  Crensbauer,  68  Mo.  254 763,  780 

v.  Dailey,  7  Mo.  App.  549 778 

v.  Dodge  County,  20  Neb.  595 879 

v.  Dulle,    45    Mo.    269 334 

v.  Fulton,  35  Mo.  323 334 

v.  Greensdale,  106  Ind.  364 859 

v.  Gurney,  17  Neb.  523 10 

v.  Hamlin,  86  Me.  495 637 

v.  Hewett,  72  Mo.  603 931 

v.  Holt,  27  Mo.  340 785 

v.  John,  3  Or.  536 9 

v.  Jones,   89   Mo.   470 910 

v.  Johnson,  7  Blackf.  (Ind.)  529 237 

v.  Kiler,  121  Iowa,  423 662 

v.  Lawson,  14  Ark.  114 513 

v.  Lansing,  46  Neb.  514 5,  7,  8 

v.  Leslie,  83  Mo.  60 924 

v.  Lewis,  73  N.  C.  138 931 

v.  McDonald,  55  Or.  419 16,  202,  729,  744,  745 

v.  Meeker,  19  Neb.  106 25 

v.  Nulls,  82  Ind.   126 784 

v.  O'Day,  41  Or.  495 202,  744 

v.  Price,  15  Mo.  375 762 

v.  Eamsey  County  Probate  Court,  42  Minn.  54 470 

v.  Ramsey  County  Probate  Court,  25  Minn.  25 473 

v.  Reddick,  7  Kan.  143 90 

v.  Reinhardt,    31    Mo.    95 213 

v.  Reeder,  5  Neb.  203 744 

v.  Richardson,  29  Mo.  App.  595 841 

v.  Roche,  94  Ind.  372 856 

• 

v.  Rock  County  Probate  Court,  67  Minn.  51 413 

v.  Rucker,   59   Mo.   17 205,  239 

v.  Saunders,  60  Ind.  562 928 

v.  Schielforth,  9  Mo.  App.  431 722 

66 — Pro.  Ad. 


1042  TABLE    OF    CASES. 

Page 

State  v.  Scott,  12  Ind.   529 771 

v.  Smith,  52  Conn.   557 771 

v.  Stafford,  93  Mo.  658 767,  769 

v.  Stroop,   22   Ark.   328 240 

v.  Townsend,  17  Neb.  530 625 

v.  Vinsonhaler,    74    Neb.    675 637 

T.  Wilson,   38   Md.   338 14,  778 

State  Bank  v.  Hinton,  21  Ohio  St.  509 602 

Stayner  v.  Bower,  42  Ohio  St.  314 594 

Stearns  v.  Brown,  1  Pick.  (Mass.)  530 687 

v.  Fiske,  18  Pick  (Mass.)  24 213 

T.  Houghton,  38  Vt.  853 357 

Stebbins  v.  Lathrop,  4  Pick.    (Mass.)   33 119,  185 

v.  Stebbins,   94   Mich.    304 733 

v.  Smith,  4  Pick.    (Mass.)    97 194 

Steel  v.  Holliday,  20  Or.  467 351,  353,  689,  692,  695 

v.  Price,  5  B.  Mon.  (Ky.)  58 96 

Steere  v.  Hoagland,  39  111.  264 38 

Stenson  v.  Halverman  (N.  D.),  147  N.  W.  800 749,  750 

Stephen  v.  Beall,  22  Wall.  (U.  S.)  329 545 

Stephens  v.  Hendee,  80  Neb.  754 6 

v.  James,  77  Ga.  139 349 

Stephenson  v.  Axson,  1  Bail.  Eq.  (S.  C.)  274 339 

v.  Stephenson,  62  Iowa,  163 148 

Stevens  v.  Gage,  55  N.  H.  175 352,  353 

v.  Gaylord,    11   Mass.   256 320 

v.  Hope,  52  Mich.  65 97 

v.  Myers,  62  Or.  407 22,  83,  89,  116,  804 

v.  Nebraska  &  Iowa  Ins.  Co.,  29  Neb.  187 799 

v.  Smith,  4  J.  J.  Marsh.  (Ky.)   64 606 

v.  Tucker,  87  Ind.  109 873 

v.  Underbill,  67  H.  H.  68 554 

Stevenson  v.  Leslie,  70  N.  Y.  512 57 

v.  Polk,   71   Iowa,   378 224 

v.  Valentine,  27  Neb.  238 288 

Stevenson's  Admr.  v.  Phillips,  15  N.  J.  Eq.  236 707 

Stewart  v.  Bailey,  28  Mich.  251 542 

v.  Champaign  County,  4  Ohio  St.  98 769 

v.  Daggy,  13  Neb.  290 36,  879 

v.  Elliott,  2  Mackey  (D.  C.),  307 137 

T.  McMurray,  82  Ala.  269 924 


TABLE    OF    CASES.  1043 

Page 

Stewart  T.  Raper,  85  Neb.  816 800 

v.  Stewart,  31  X.  J.  Eq.  398 55 

Stewart,  In  re,  56  Me.  300 155 

Stewart,  Matter  of,  5  Paige  (N.  Y.),  596 155 

Stichter  v.  Cox,  52  Neb.  532 438,  462 

Stinchfield   v.   Emerson,   52    Me.   465 748 

Stinson  v.  Leary.  99  Wis.  269 915 

Stirling  v.  Stirling,  64  Md.  138 143 

Stitt  v.  Bush,  22  Or.  239 726 

Stiver    v.    Stiver,    8    Ohio,    221 478 

Stokes  v.  Van  Wyck,  83  Va.  734 52 

Stone  v.  Wood,  16  111.  179 463 

Stonestreet  v.  Doyle,  65  Va.  356 584 

Storer  v.  Blake,  31  Me.  289 271 

Storms  v.  Allegan  Circuit  Judge,  99  Mich.  114 916 

Stovall  v.  Banks,  10  Wall.  (U.  S.)  584 784,  785 

Stow  v.  Kimball,  28  111.  93 544 

Stow's  Estate,  Myr.  Prob.  (Cal.)  97 238 

Strahan  v.  Wayne  County,  93  Neb.  828 638,  661,  714 

Stratton   v.   McCandless,  27   Kan.   296 782,  783 

Strauss   v.   Phillips,   189  111.   9 414 

Streeter  v.  Paton,  7  Mich.  341 296 

Streiff,  In  re,  119  Wis.  566 805 

Streng  v.  Moe,  8  Allen   (Mass.),  125 894 

Stroh  v.  Hearn  (Mich.),  142  Mich.  865 578 

Stronach  v.  Stronach,  20  Wis.  129 333 

Strong  v.  Potts,  94  Neb.  742 106,  107,  118 

v.  Wilkson,    14    Mo.    116 782 

v.  Williams,   12   Mass.   391 580 

Stuart  v.  Allen,  16  Cal.  473 484 

Stuckey  v.  Leonard,  87  Ark.  232 545 

v.  Stuckey,  1  Hill  Eq.  (S.  C.)  309 52 

Stull  v.  Stall,  1  Neb.  Unof.  380 88,  86 

Stumph  v.  Goepper,  76  Ind.  323 856 

Sturgis  v.  Sturgis,  51  Or.  19 858,  861,  862 

Sturtevant  v.  State,  15  Neb.  459 754 

Sugden  v.  St.  Leonards,  1  Prob.  Div.  154 105,  107 

Sullivan  v.  Horner,  41  N.  J.  Eq.  299 444,  446 

v.  Nicoulin,  113  Iowa,  76 178 

v.  Ross'   Estate,  98  Mich.  570 447 

Sullivan's  Will,  In  re,  114  Mich.  180 125 


1044  TABLE   OF   CASES. 

Page 

Summers  v.  Babb,  13  111.  483 CIS 

v.  Howard,  33  Ark.  490 920 

Sunderland  v.  Hood,  84  Mo.  293 81 

Sussewind  v.  Lever,  37  Or.  367 469 

Sutherland  v.  Brush,  7  Johns.  Ch.  (N.  Y.)  17 766 

v.  Harrison,  86  111.  363 557 

Sutphen  v.  Ellis,  35  Mich.  456 45 

Sutton  v.  Button's  Estate,  13  Vt.  71 538 

Swazey  v.  Jaques,  144  Mass.  135 56 

v.  Little,  7  Pick.  (Mass.)  296 579 

Sweeney  v.  Montgomery,  85  Ky.  55 605 

Sweeney's  Estate,  In  re,  94  Neb.  834 83 

Sweetzer  v.  Jones,  35  Vt.  417 261 

Swift,  In  re,  47  Cal.  629 845 

Swift,  In  re,  1  B.  Mon.  (Ky.)  114 65 

SwindaU  v.  Swindall,  43  N.  C.  285 869 

Sydnor  v.  Palmer,  29  Wis.  226 54 

T 

Tabor,  Succession  of,  33  La.  Ann.  343 498 

v.  Tabor,  85  Wis.  313 48 

Taggart  v.  Tevanny,  1  Ind.  App.  339 408 

Tait  v.  Gardner,  119  Ga.  133 677 

v.  Northwick,  4  Ves.  823 555 

Talmage  v.  Chappel,  16  Mass.  71 459 

Tarbox  v.  Fisher,  50  Me.  236 278 

Tate   v.  Bush,   60  Miss.   45 865 

v.  Hilbert,  2  Ves.  Jr.  Ill 591 

Tawney  v.  Long,  76  Pa.  106 88 

Taylor  v.  Ainsworth,  49  Neb.  496 456 

v.  Barren,  35  N.  H.  484 417 

T.  Biddle,  71  N.  C.  1 236 

v.  Brown,  55  Mich.  482 920 

v.  De  Laney,  2  Caines  Cas.   (N.  Y.)   143 224 

v.  Galloway,  1  Ohio  St.  232 326 

v.  Hemingway,   81   Ky.    158 927 

v.  Jeter,  33  Ga.  195 820 

v.  Mygatt,  26  Conn.  184 773 

v.  Phillips,  30  Vt.  241 203 

V.  Taylor,  47  Md.   295 2o9 


TABLE    OF    CASES.  1045 

Page 
Taylor  v.  Tilden,   3  Neb.   343 13 

v.  Tolen,  38  N.  J.  Eq.  91 586 

v.  Trich,  165  Pa.  586 88 

v.  Wright,   93   Ind.    121 689 

Teal  v.  Sevier,  26  Tex.  516 933 

Tecumseh  Nat.  Bank  v.  McGee,  61  Neb.  709 320,  454 

Teel  v.  Winston,  23  Or.  491 433 

Teipel  v.  Vanderwier,  36  Minn.  443 926 

Templeton  v.  Falls  Land  &  Cattle  Co.,  77  Tex.  55 537 

Teneick  v.  Flagg,  29  N.  J.  L.  25 264 

Terrell  v.  Towland,  9  Ky.  Law  Eep.  258 694 

Territory  v.  Valdez,  1  N.  M.  539 213 

Terry  v.  Edminster,  6  Pick.   (Mass.)   355 99 

v.  Johnson,    73    Neb.    653 821,  854 

Teschemacher  v.  Thompson,  18  Cal.  11 240 

Teske  v.  Ditberner,  70  Neb.  544 465,  466,  468,  626 

Tessier  v.  Crowley,  17  Neb.  209 189 

Teverbaugh   v.   Hawkins,   82   Mo.   180 490 

Thacher  v.  Dunham,  5   Gray   (Mass.),   26 691 

Thackary's  Appeal,  75  Pa.   132 864 

Tharp   v.   Brenneman,   41   Iowa,   251 230 

Thaycr    v.    Finnegan,    134    Mass.    62 578 

v.  Hollis,  3  Met.   (Mass.)    369 438 

v.  Homer,  11  Met.   (Mass.)    104 213,  239 

The  Grange  Union  v.  Burkett,  8  Or.  51 343 

Theurer    v.    Neutre,    23    La.    Ann.    749 261 

Thomas  v.  Estate  of  Thomas,   64  Neb.   581 730 

v.  Parker,  97  Cal.  456 383 

v.  Reister,   3   Ind.   369 344 

v.  Thomas,   16   Neb.   555 212 

v.  Williams,    80    Kan.    632 562 

v.  Williams,    105    Minn.    88 127 

Thompson  v.  Bondurant,  15  Ala.  346 768 

v.  Bridge,  60  Kan.   549 514 

v.  Brown,    16   Mass.    172 194 

v.  Dekum,    32    Or.    506 765,766 

v.  Hawks,  14  Fed.  902 138 

v.  Morrow,  5  Serg.  &  R.   (Pa.)   289 616 

v.  Pierce,  95  Neb.  692 444 

v.  Pope,  77  Neb.  308 194.  793 

v.  Kush,   66   Neb.    753.. 783 


1046  TABLE    OP    CASES. 

Page 

Thompson  T.  Thompson,  49  Neb.  157 61,  64,  83,  86,  146 

v.  Thompson,  4  Ohio  St.  333 559 

Thompson's  Admr.  v.  Thompson,  51  Ala.  493 276 

Thomsen,  In  re,  1  Neb.  Unof.  751 830,  854 

Thorn  v.  Garner,  113  N.  Y.  198 251 

Thornburn  v.  Doscher,  32  Fed.  810 603,  615 

Thornton  v.  Glover,  25  Miss.  132 770 

v.  Mehring,    117    111.    55 257 

v.  Mulquinne,  12  Iowa,  549 543 

v.  Thornton,  27  Mo.  302 865 

Thorson  v.  Hooper,  57  Or.  578 286,  323 

Thurston  v.  Doane,  47  Me.  79 258 

v.  Wilmer,  94  Md.  455 567 

Tidball  v.  Young,  58  Neb.  261 221,  250,  762 

Tierney  v.  Tierney,  81  Neb.  193 835,  839 

Tierney's  Estate,  In  re,  103  Minn.  286 63 

Tiffany  v.  Wright,  79  Neb.  10 821,  937 

Tillman  v.  Davis,  95  N.  Y.  17 55 

v.  Spann,  68  Ala.  102 \ 606 

Tillotson  v.  Tillotson,  34  Conn.  335 362 

Tilson  v.  Holloway,  89  Neb.  403 290,  295 

Tindall  v.  Peterson,  71  Neb.  160 534,  624,  628 

v.  Tindall's  Exrs.,  23  N.  J.  Eq.  244 58 

Tinkom  v.  Purdy,  5  Johns.  (N.  Y.)  345 514 

Tippett  v.  Mize,  50  Tex.  361 544,  899 

Titlow  v.  Titlow,  54  Pa.  216 133 

Todd  v.  Martin  (Cal.),  37  Cal.  872 451 

Todd,  In  re,  237  Pa.  466 642 

Todhunter  v.  Stewart,  39  Ohio  St.  181 211 

Toepf er,  In  re,  12  N.  M.  372 101 

Tolifaro,  In  re,  113  Iowa,  747 812,  913 

Tome's  Appeal,  50  Pa.  285 .• 249 

Tomlinson  v.  Simpson,  33  Minn.  443 920 

Toms  v.  Williams,  41  Mieh.  574 57 

Tong  v.  Marvin,  26  Mich.  35 830 

Tongie's  Lessee  v.  Nutwell,  13  Md.  415 58 

Tootle,  Hosea  &  Co.  v.  Jones,  19  Neb.  588 818 

Torry  v.  Black,  58  N.  Y.  185 860 

Tostel  v.  Murat,  19  Or.  183 551 

Towle  v.  Towle,  46  N.  H.  431 784 

Town  of  Hudson  v.  Hills,  8  N.  H.  417 821 


TABLE    OF   CASES.  1047 

Pago 

Townsend  v.  Gordon,   19  Cal.   188 485 

v.Howard,    86    Me.    285 95 

v.  Kendall,   4  Minn.  412 854 

v.  Tallant,    33    Cal.    45 492 

Tracy  v.  Tracy,  15  Barb.  (N.  Y.)  503 555 

Traer  v.   Setzer,  72  Neb.   845 731 

Treadway  v.  Sharon,  7   Nev.   37 261 

Treadwell  v.  Sorell,  25  Miss.  563 412,  676 

Trecothick  v.   Austin,  4  Mason,  33 412 

Triche,  Succession  of,  39  La.  Ann.  289 680 

Trow   v.   Thomas,   70   Vt.   580 821 

Trucht  v.  Bunnell,   11  Or.   58 17,   863,  901 

Trueman  v.  Tilden,   6  N.  H.  201 687 

Trumble  v.  Williams,  18  Neb.  144 232,  233,  523,  541 

Trumpeter   v.   Cotton,  109   Cal.   250. 913 

Trustees  of  Schools  v.  Snell,  19  111.  156 543 

Tucke  v.  Bucholz,  43  Iowa,  415 918 

Tucker  v.  Field,  51  Miss.  191 601 

v.  People,  87  111.  76 783 

v.  Stewart,   147   Iowa,   294 784 

v.  Tucker,  33  N.  J.  Eq.  235 346 

Tudor  v.  James,  53  Ga.  302 164 

Tuller's  Will,  In  re,  79  111.  99 102 

Tunnicliff  v.  Fox,  68  Neb.  811 295,  324,  416,  682,  701 

Turbeville  v.  Flowers,  27  S.  C.  331 353 

Turner  v.  Alexander,  41  Ark.  254 831 

v.  Gibbs,  48  N.  J.  Eq.  526 578 

v.  Laird,    68    Conn.    198 555 

v.  Eisor,   54   Ark.    33 459 

v.  Turner,   57    Miss.    775 556 

v.  Turner,  2  Amb.  782 268 

Turner's  Appeal,   48  Mich.   369 596 

Turney  v.  Williams,  7  Yerg.   (Tenn.)   211 680 

Turpin  v.  Turpin,  88  Mo.  387 596 

Tustin  v.  Gaunt,  4  Or.  395 3,     17 

Tutt  v.  Boyer,  51  Mo.  425 526 

Tuttle  v.  Eobinson,  33  N.  H.  104 261,  352,  589 

Tyler  v.  Tyler,   19  111.   151 101 

Tyndall  v.  Stanwood,  182  Mass.  534 486 

Tyner  v.  Hamilton,  51  Ind.  259 928 

Tyson  T.  Tyson,  61  Neb.  438 624,  629 


1048  TABLE    OF    CASES. 

u 

Page 

Underwood  v.  Sample,  70  Tnd.  448 308 

Underwood's  Exrs.  v.  Underwood's  Heirs,  22  W.  Va.  303 485 

Unger  v.  Leiter,  32  Ohio  St.  210 602 

Union  Bank  of  Georgetown  v.  Smith,  4  Cranch    C.  C.  21 569 

Union  Mutual  Life  Ins.  Co.  v.  Lovitt,  10  Neb.  301 99 

Union  Nat.  Bank  v.  Vaiden,  18  How.   (U.  S.)   503 459 

Union  Pacific  Ey.  Co.  v.  Dunden,  37  Kan.  1 219 

v.  Smith,    5    Neb.   Unof .    631 759 

Union  Trust  Co.  v.  Durfee,  125  Mich.  489 637 

United  Brethren  v.  Aiken,  45  Or.  250 321 

v.  Aiken,   45   Or.   277 781 

United  States  v.  Barker,  2  McArth.   (D.  C.)    291 771 

v.  Coxe,  18  How.    (U.   S.)    100 775 

v.  Duncan,  12  111.  523 569 

v.  Duncan,   4    McLean,    99 718 

v.  Duncan,  4  McLean,  607 569 

v.  Eggleston,  4   Saw.    199 r   569 

v.  King,   1   McArth.    (D.   C.)    499 770 

v.  Perkins,    163    U.    S.    625 637 

Updike  v.   Tenbroeck,  32  N.  J.  L.   105 465 

Utz'a  Estate,  In  re,  43  Cal.  201 55 

V 

Valentine  v.  Jackson,  9  Wend.  (N.  Y.)  302 28i6,  304,  406 

Valle  v.  Bryan,  19  Mo.  423 500 

v.  Fleming,  19  Mo.  454 492,  519,  547 

Van  Alst  v.  Hunter,  5  Johns.  Ch.  (N.  Y.)  148 87 

Van  Cleve  v.  Van  Fossen,  73  Mich.  342 727 

Vancy  v.  Smith,  124  Cal.  219 433 

Van  Deever  v.  Higgins,  59  Neb.  333 101 

Van  Dyne  v.  Vreeland,  12  N.  J.  Eq.  142 465 

Van  Harren  v.  Tierney  (Mich.),  146  N.  W.  658 438 

Van  Horn  v.  Ford,  16  Iowa,  578 544 

Van  Home  v.  Campbell,  100  N.  Y.  287 43 

Van  Kleek  v.  McCabe,  87  Mich.  599 361 

v.  Eeformed  Dutch  Church,  6  Paige  (N.  Y.),  600 555 

Van  Matre  v.  Sankey,  148  111.  526 947 

Van  Meter  v.  Jones,  3  N.  J.  Eq.  520 257 


TABLE   OF   CASES.  1049 

Page 

Van  Orsdell's  Estate,  In  re,  94  Neb.  98 727 

Van  Bees  v.  Witzenberg,  112  Iowa,  110 917,  91S 

Van  Riper  v.  Van  Riper,  2  X.  J.  Eq.  1 582,  583 

Van  Swearingen  v.  Harris,  1  Watts   &  S.  (Pa.)  356 469 

Varner  v.  Johnson,  112  N.  C.  570 319 

Varrell  v.  Wendell,  20  X.  H.  435 56 

Vasek's  Estate,  In  re  (Neb.),  150  N.  W.  110 510 

Vason  v.  Bell,  53  Ga.  416 919 

Vaughan  v.  Dickes,  20  Pa.  209 413 

v.  Northrop,  15  Pet.   (U.  S.)   1 405 

Veeder  v.  McKinley-Lanning  Loan  &  Trust  Co.,  61  Neb.  892 

— 481,  503,  515,  534,  535,  541 

Verdier  v.  Bigne,  16  Or.  210 433 

v.  Roach,  96  Cal.  467 468,  552 

Vermilyea  v.  Bunce,  61  Iowa,  605 929 

Verner's  Estate,  6  Watts   (Pa.),  250 683 

Vernor  v    Colville,   54  Mich.   281 327 

Verplank  v.  Sterry,  12  Johns.  (N.  Y.)   536 318 

Verret  v.  Belanger,  6  La.  Ann.  109 779 

Vette  v.  Heinrichs,  93  Neb.  551 436 

Vick  v.  City  of  Vicksburg,  3  How.   (Miss.)   209 198 

Vickery  r.  Baier,  16  Mich.  50 403 

Vidal  v.  Philadelphia,  2  How.  (U.  S.)   127 56 

Vincent  v.  Starks,  43  Wis.  458 v 930,  931 

v.  Vincent,  70  N.  J.  Eq.  272 164 

Vinson  v.  Gentry,  14  Ky.  Law  Rep.  804 604 

Vogel  v.  Lehriter,  139  N.  Y.  223 ». 67 

Vroom  y.  Van  Home,  10  Paige  Ch.  (N.  Y.)  49 406 

W 

Wade  v.  Northrup  (Or.),  140  Pac.  454 132 

v.  Pulsifer,  54  Vt.  45 918 

Waddill  v.  Martin,  38  N.  C.  562 694 

Waddington  v.  Buzby,  45  N.  J.  Eq.  173 141 

Waesch's  Estate,  166  Pa.   204 446 

Wagner  v.  Varner,  50  Iowa,  532 722 

Waite  v.  Frisbie,  45  Minn.  361 145 

v.  Wills,  42  Or.  290 691 

Wakefield  v.  Campbell,  20  Me.  393 512 

Waldo  v.  Waldo,  52  Mich.  94 290 

v.  Beemer,  45  Neb.  628 496 


1050  TABLE   OF   CASES. 

I 

Page 

Wales  v.  Newbold,  9  Mich.  83 287 

Walker  v.  Cornelius,  21  Or.  341 803 

v.  Craig,  18  111.   116 2.34 

v.  Ehresman,  79  Neb.  775 264,  295,  743 

v.  Goldsmith,   14  Or.   125 895,  896 

T.  Hale,  92  Neb.  829 455 

v.  Hill,  14  Mass.  380 336 

v.  People,  192  111.  106 650 

Walker's    Appeal,    116    Pa.    419 684 

Walker's  Estate,  9  Serg.  &  B.  (Pa.)  233 694 

Wall's  Appeal,  104  Pa.  14 910 

Wallace  v.  Hawes,  79  Me.  177 40 

v.  Johns,  93   Ga.   419 877 

v.  Long,    105    Ind.    522 448 

v.  Shaud,   81   Md.   594 450 

v.  Sheldon,  56  Neb.  55 156,  448 

Walling  v.  Burgess,  122  Ind.  299 363 

Walling,  In  re,  35  N.  J.  Eq.  105 927 

Wallis  v.  Neale,  43  W.  Va.  529 , 856 

v.  Wallis,  114  Mass.  510. 77 

Wally  v.  Wally,  41  Miss.  67 276 

Walmsley  v.  Milne,  7  Com.  B.,  N.  S.,  115 261 

Walsh  v.  Wilson,  131  Mass.  535 615 

Walter  v.  Marks,  29  Or.  493 423,  424 

v.  Walla,  10  Neb.  123 859,  865 

Walters  v.  Wiley,  1  Neb.  Unof.  235 10 

Walton  v.  Twiggs,  91  Ga,  90 825 

Walworth  v.  Bartholemew,  76  Vt.  1 682 

Wanzer  v.  Howland,  10  Wis.  8 537 

Ward  v.  Carp  Kiver  Iron  Co.,  47  Mich.  65 622 

v.  Laverty,  19  Neb.  249 820 

Ward's  Will,  In  re,  70  Wis.  251 102 

Wardell  v.  Wardell,  71  Neb.  774 531,  622,  624,  635 

Warfield  v.  Brand's  Admr.,  13  Bush  (Ky.),  77 779 

Waring  v.  Lewis,  53  Ala.  631 308 

Warren  v.  Englehart,  13  Neb.  283 56,  214,  216,  726 

v.  Hendricks,   40    Or.   139 701 

v.  Powers,  5  Conn.  373 769 

v.  Taylor,  56  Iowa,  182 99 

Washington  v.  Blunt,  43  N.  C.  253 232 

T.  McCaughan,  34  Miss.  304 537 


TABLE   OF   CASES.  1051 

Page 

Waterhouse  v.  Bourke,  14  La.  Ann.  358. 262 

Waterman  v.  Dockray,  79  Me.  149 763 

v.  Wright,  36  Vt.   164 922 

Waters  v.  Reed,  88  N.  W.  394 92 

v.  Stickney,  12  Allen   (Mass.),  1 116,  162 

Watkins  v.  Holman,  16  Pet.  (U.  S.) 478 

v.  Peck,  13  N.  H.  360 865 

Watson  v.  Byrd,  52  Miss.  480 203 

v.  Glover,  77  Ala.  323 245 

v.  McClinch,   57   Or.   467 42,  99 

v.  Moore,  40  Or.   206 432 

v.  Watson,  10  Conn.  77 526 

Wattles  v.  Hyde,  9  Conn.  10 784 

Waukf ord  v.  Waukf ord,  1  Salk.  306 320 

Weathersby  v.  Sleeper,  42  Miss.  732 261 

Webb  v.  Jones,  36  N.  J.  Eq.  163 586 

v.  Hitchins,  105  Pa.  91 51 

v.  Keller,  39  La.  Ann.  55 232 

T.  Peck,   131   Mich.   539 694 

v.  Stillan,  26  Kan.  371 792 

Webber  v.  Noth,  51  Iowa,  375 769,  784,  785 

v.Sullivan,    58    Iowa,    260 138 

Webster  v.  Calder,  57  Me.  203 546 

v.  City  of  Hastings,  56  Neb.  245 298 

v.  Webster,  33  N.  H.  18 622 

Weeks  v.   Wortman,    77   Neb.   407 755 

v.  Sego,  9  Ga.  199 222 

Weider   v.   Osborn,   20   Or.   310 331 

Weigand's  Appeal,  28  Pa.  471 352 

Weil  v.  Clark's  Estate,  9  Or.  387 495 

Weisner  v.  Zaun,  39  Wis.  188. 728 

Welch  v.  Anderson,  28  Mo.  293 719,  722 

v.  Burris,  29  Iowa,  186 855 

v.  Welch,  181   Mass.  27 278 

v.  Welch,  9  Rich.  Eq.  (S.  C.)  133. 1£5 

Welch,  In  re,  74  N.  Y.  290 825 

Weldon  v.  Keen,  37  N.  J.  Eq.  251 825 

Weller  v.  Nof singer,  57  Neb.  456 47,     49 

Wells  v.  Applegate,  10  Or.  526 427 

v.  Stecklenberg,  50  Neb.  670 821,  875,  880,  898 

v.  Wells,  4  T.  B.  Mon.  (Ky.)  152 95 


1052  TABLE   OF    CASES. 

Page 

Welsh  v.  Barrett,  15  Mass.  380 469 

v.  Crater,  32  N.  J.  Eq.  177 56 

Welton  v.  Beltezore,  17  Neb.  401 810 

Wendell  v.  French,  19  N.  H.  20o 685 

v.  Fuerst  (Or.),  136  Pac.   136 60,  64,  123 

Wernse  v.  Hall,  101  111.  423 234 

West  v.  Reavis,  13  Ind.  294 707 

v.  West,  89   Ind.   529 584 

v.  West's  Admr.,  75  Mo.  204 910 

West  Duluth  Land  Co.  v.  Kurtz,  45  Minn.  380 511,  543 

Westbrook  v.  Comstock,  Salk.  (Mich.)  314 314 

v.  Munger,  64  Miss.   575 478 

Weston  v.  Goodrich,  68  Hun  (N.  Y.),  194 657,  661 

v.  Stuart,   14  Me.  326 207 

Westover  v.  Carman's  Estate,  49  Neb.  397 347,  684,  701 

Westurn,  In  re,  152  N.  Y.  43 650 

Wever  v.  Martin,  14  Barb.  (N.  Y.)  376 675 

Weyer  v.  Second  Nat.  Bank,  57  Ind.  198 259 

Whearley  v.  Martin's  Admr.,  6  Leigh  (Va),  62 309 

Wheaton,  In  re,  68  N.  J.  Eq.  562 86 

Wheeler  v.  Barker,  51  Neb.  846 14,  17,  574,  803 

v.  Bent,   7  Pick.    (Mass.)    61 67 

v.  Emerson,  44  N.  H.  182 320 

v.  Ruthven,  74  N.  Y.  428 581 

Whipf  v.  Hedder,  6  Tex.  Civ.  App.  685 545 

Whitaker  v.  Belt,  25  Or.  490 604,  605 

v.  Van  Schoick,  5  Or.  113 605 

White  v.  Ditson,  149  Mass.  351 779 

v.  Ladd,  32   Or.  422 432 

v.  Ledyard,  48  Mich.  264 567 

v.  McPherson,    183    Mass.    533 133 

v.  Moore,  23  S.  C.  456 587 

v.  Parker,  8  Barb.  (N.  Y.)  48 910,  920 

v.  Pomeroy,  7  Barb.  (N.  Y.)   640 827 

v.  Schaberg,   131   Mich.   319 784 

v.  Spalding,   50   Mich.   22 242 

White's  Will,  121  N.  Y.  406 88 

Whitehouse  v.  Whitehouse,  90  Me.  468 586 

"Whitf ord  v.  Kinzil,  92  Neb.  378 713 

Whiting  v.   Barstow,  4   Pick.    (Mass.)    310 261 

Whitman  Y.   Morey,   63   N.   H.   448 146,  148 


TABLE    OF    CASES.  1053 


Whitney  v.  Beddicord,  63  HI.  249 351 

Whitney's  Heirs  v.  Kimball,  4  Ind.  546 318 

Whiton's  Estate,  In  re,  86  Neb.  367 700,  701,  791 

Wiggins    v.    Sweet,    6   Met.    (Mass.)    194 324 

Wilcox   v.   Matteson,   53   Wis.   23 589 

v.  Wilcox,  13    Allen   (Mass.),  252 577 

Wilcoxon   v.   Eeese,   53   Md.   452 252 

Wiley  v.  Brainerd,  11  Vt.  107 235,  245 

v.  Wiley,  1  Neb.  Unof.  235 10 

Wilgus  v.  Gettings,  21  Iowa,  177 261 

Wilkerson   v.   Allen,    67   Mo.   502 519 

Wilkes  v.  Cornelius,  21  Or.  352 426 

Wilkins  v.  Ellett,  9  Wall.   (U.  S.)   740 418,  505 

v.  Ordway,  49  N.  H.  378 56 

W 'ilkinson  v.  Conarty,  65  Mich.  614 217 

v.  Doming,  80  111.  342 822 

v.  Filby,   24    Wis.   441 897 

Will's  Appeal,  22  Pa.  325 859 

Willard  v.  Nason,  5  Mass.  240 499 

Willetts   v.    Conklin,   88    Neb.    805 48 

Willet  v.  Brown,  65  Mo.  138 603 

Williams  v.  Chitty,  3  Ves.  345 555 

v.  Ely,   13   Wis.   1 330 

v.  Fox,    25    Wis.    646 864 

v.  Hutchinson,   3   N.   Y.   312 456 

v.  Johnson,  112  N.  C.  424 546 

v.  Kiernan,   25   Hun    (N.   Y.),   335 781 

v.  Miles,  63  Neb.  855 17,   19,  106,   149,  707 

v.  Miles,  63  Neb.  859 163,   165,   166,  755 

v.  Miles,  68  Neb.  463 66,   97,  105,   106,  107 

v.  Miles,  73  Neb.  193 97,  205,  206,  806 

v.  Miles,  87  Neb.  455 97,    195,  107 

v.  State,    68    Miss.    380 779 

v.  Towl,  65  Mich.  204 301,  326 

v.  Williams,  55  Wis.  300 347,  353 

Williams'  Case,  3   Bland   (Md.),   186 610 

Williams'  Devisees  v.  Williams'  Admr.,  19  Ala.  439 483 

Williams'  Estate,  In  re,   130   Iowa,  553 409 

Williams'  Guardianship,  In  re  (Neb.),  151  N.  W.  161 932 

Williamson   v.   Howell,  4   Ala.   693 785 

v.  Jones,  52  W.  Va.  563 45 


1054  TABLE   OF   CASES. 

Page 

Williamson  v.  Woodman,   73   Me.   163 784 

Williamson,  In  re,  102  Cal.   70 934 

Wlllier  v.  Cummings,  91  Neb.  571 325 

Wilmi  v.  Plambeck,  76  Neb.  195 25,  26,  168 

Wilson  v.  Bumstead,  12  Neb.  1 299 

v.  Coburn,  35  Neb.  530 17 

v.  Foss,  2  Neb.  Unof.  428 577 

v.  Holt,    82    Ala.    528 533 

v.  Mills,   30  Md.   82 301 

v.  Mitchell,  101  Pa.  495 86 

T.  Moran,  3  Brad.  Sur.  (N.  Y.)  180 142 

v.  Odell,  58  Mich.  533 534 

v.  Soper,  13  B.  Mon.   (Ky.)  411 557 

v.  Staats,  32  N.  J.  Eq.  524 346 

v.  Wilson,  52  Iowa,  44 451 

v.  Wilson,  83  Neb.  562 452 

v.  Wilson,  90  Neb.  353 867,  911 

Wilson's  Appeal,   99   Pa.    545 140 

Wilson's  Appeal,  115  Pa.  95 706 

Wilson's  Guardianship,    40    Or.    358 856 

Wilson's     Estate,  In  re,  83  Neb.  252 690,  691,  695,  704,  705 

Wilson,  In  re,  78  Neb.  758 86 

Wiltsie's   Will,   In   re,   122   Iowa,   423 128 

Wilty  v.  Wllty,  10  Ky.  Law  Rep.  513 911 

Winans  v.  Lupie,  47  N.  J.  Eq.  302 945 

Winch's  Estate,  In  re,  84  Neb.  251 132,  146 

Winkle  v.  Winkle,  8  Or.  193 18 

Winn  v.  Grier,  217  Mo.  420 89 

W'inslow  v.  Crowell,  32  Wis.  639 547 

v.  People,  117  111.  152. 928 

v.  Troy,  97  Me.  130 834 

Winston  v.  McClendon,  43  Miss.  254 483,  492,  521 

Winter   v.   Truax,   87   Mich.   324 887 

Wirsig  v.  Scott,  79  Neb.  322 825,  830,  831 

Wisconsin  Trust  Co.  v.  Chapman,  121  Wis.  479 383 

Wise  v.  Foot,  81  Ky.   10 91 

Wisner  v.  Mabley's  Estate,  74  Mich.  143 695 

Wistar  v.  Scott,   105  Pa.   200 54 

Witt  v.  Day,  112  Iowa,  110 917,  918 

v.  McWhirter,   57    Iowa,   545 865 

Wolf,  In  re,  137  N.  Y.  265, . . ,. 661 


TABLE    OF   CASES.  1055 

Paee 

Wolf  v.  Ogden,  66  111.  224 482 

v.  Van  Meter,   27   Iowa,   248 514 

Womble  v.  Trice,  112  Ky.  533 873 

Wood  v.  Black,  84  Ind.  279 845,  846 

v.  Fish,   63   N.   Y.   245 447 

v.  Myrick,    17   Minn.   408 346 

v.  Williams,  61  Mo.  63 764 

T.  Wood,  5  Paige   (N.  Y.),  596 155 

Wood's  Appeal,  133  Pa.  260 579 

Woodard  v.  Jaggers,  58  Ark.  250 515 

Woodburn  v.  Woodburn,  123  HI.  608 589 

Woodbury  v.  Woodbury,  58  N.  H.  44 279 

Woodhull  v.  Longstreet,  18  N.  J.  Eq.  405 603 

Woodruff  v.  Handley,  127  Ala.  640 96 

v.  Lounsberry,  42  N.   J.  Eq.  699 694 

v.  Snedivcor,  68  Ala.  427 870 

v.  Snover  (N.  J.),  45  Atl.  980 826 

Woods   v.   Boot,   60   Mo.   546 865 

v.  Clute,  1  Sand.  Ch.  (N.  Y.)  201 615 

Woods'  Estate,  In  re,  1  Pa.  268 356 

Woods,  In  re,  1  Ashm.   (Pa.)   314 446 

Woomer's  Appeal,  144  Pa.  383 913 

Wooten,  Estate  of,  56  Cal.  322 242 

Worgang's  Admr.  v.  Clipp,  21  Ind.  119 783 

Worley  v.   Shong,  35   Neb.   311 802 

v.  Taylor,  21  Or.  589 735 

Worrell's   Appeal,   23    Pa.   44 911 

Worth  v.  Curtis,  15  Me.  228 887 

Worthy  v.  Johnson,  8  Ga.  236 513,  515,  562 

Wright    v.   Barton,  34   Neb.   776 357 

v.  Comley,  14  111.  App.  551 865 

v.  Edwards,    10    Or.    298 496 

v.  Methodist  Episcopal  Church,  1  Hoff.  Ch.  (N.  Y.)  202 56 

v.  Reed,  118  111.  333 457 

v.  Tinsley,  30  Mo.  389 465,  468 

v.  Wright,   72   Ind.   49 213 

v.  Wright,  31  Mich.  380 465 

Wright's  Appeal,   12  Pa.  256 555* 

Wright,  In  re  Estate  of,  49  Cal.  550 790 

Wright's  Heirs  v.  Ware,  50   Ala.   549 486 

Wyckoff  v.  Hulse,  32  N.  J.  Eq.  697 869,  911 


1056  TABLE    OF    CASES. 

Page 

Wyckoff  v.  Perrine,  37  N.  J.  Eq.  118 586 

Wylie  v.  Charlton,  43  Neb.   846 600 

Wyman  v.  Hubbard,  13  Mass.  232 683,  780 

v.  Wyman,  26  N.  H.  253 264,  307 

Wyman's  Appeal,  13  N.  H.  18 307 

Y 

Yancy  v.  Field,  85  Va.  756 589 

Yarborough  v.  Ward,  34  Ark.  204 235 

Yardley  v.  Culbertson,  108  Pa.  395 142 

Yarnall's   Will,   4  Eawle    (Pa.),   46 79 

Yeatman  v.  Yeatman,  35  Neb.  422 473 

Yeaw  v.  Searle,  2  E.  I.  164 242 

Yerkes  v.  Broom,   10  La.   Ann.  94 242 

Yoessel  v.  Reiger,  75  Neb.  180 38,  39,  48 

Young  v.  Boardman,  97  Mo.  181 720 

v.  State,  36   Or.  424 745 

v.  Tarbell,   37   Me.    509 601 

v.  Wells,  33  Mo.  106 297 

v.  Young,  87  Me.  44 837 

v.  Young,  45  N.  J.  Eq.  27 389 

Young's  Estate,  In   re,   97  Iowa,   218 695,  696 

Youngson  v.  Bond,  69  Neb.  356 19,  734 

Yundt's  Appeal,   13  Pa.   575 893 

z 

Zachman  r.  Zachman,  201  111.  380 626 

Zackary  v.  Chambers,  1  Or.  321 424 

Zeigler  v.  Sprenkle,  7  Watts  &  S.  (Pa.)  178 722 

Zerbe  v.  Miller,  16  Pa.  488 145 

Zeuske  v.  Zeuske,  60  Or.  57 295 

Zimmer  v.  Saier,  158  Mich.  170 118 

Zimmerman  v.  Trude,  86  Neb.   503 20 

Zunkel  v.  Colson,  109  Iowa,  695 280 


INDEX. 


A 

ABSENTEES. 

presumption  concerning  death  of,  §  140,  p.  211. 

ACCOUNTING. 

by  administrator  de  l>onis  non  with  predecessor,  §  428,  p.  710. 
by  ancillary  administrator,  §  270,  p.  416. 
by  executor  under  a  residuary  bond,  §  410,  p.  674. 
executors  and  administrators. 

when  accounting  required,  §  411,  p.  674. 

who  may  compel  accounting,  §  411,  p.  675. 

presumption  from  lapse  of  time,  §  411,  p.  676. 

proceedings  for  an  accounting,  §  412,  p.  676. 

annual  or  periodical  account,  §  413,  p.  679. 

effect  of  allowance  of  annual  or  periodical  account,  §  413,  p.  679. 

FORMS. 
General  petition  for  an  accounting  by  executor  or  administrator, 

No.  180,  p.  677. 

Petition  by  legatee  for  an  accounting,  No.  181,  p.  678. 
Citation  to  executor  or  administrator  to  account,  No.  182,  p.  679. 
Annual  account  of  executor  or  administrator,  No.  183,  p.  680. 

administration  account — charges, 
property  sold,   §  414,  p.  681. 
increase  in  value  of  assets,  §  414,  p.  682. 
income  from  real  estate,  §  414,  p.  683. 
indebtedness  to  the  estate,  §  414,  p.  682. 
assets  for  which  he  is  not  liable,  §  414,  p.  683. 
general  rule  as  to  interest,  §  415,  p.  683. 
cases  where  interest  should  be  charged,  §  415,  p.  684. 
when  interest  not  chargeable,  §  415,  p.  685. 
assets  used  in  purchase  of  lands,  §  416,  p.  686. 

administration  account — credits. 

claims  allowed  by  the  court,  §  417,  p.  686. 
67 — Pro.  Ad.  (1057) 


1058  INDEX. 

ACCOUNTING  (Continued). 

amounts  paid  to  satisfy  liens,  §  417,  p.  686. 

payments  to   distributees,   §  417,  p.  687. 

expenses  of  administration,  §  418,  p.  687.     See  COSTS  AND  EXPENSES 

OF  ADMINISTRATION. 

general  rule  as  to  attorney  fees,  §  418,  p.  688. 
when  attorney  fees  not  chargeable,  §  419,  p.  690. 
services  by  representative  who  is  an  attorney,  §  419,  p.  690. 
personal  liability  of  representative  for  attorney  fees,  §  419,  p.  691. 
rule  as  to  amount,  §  419,  p.  691. 

pay  of  executor  when  provided  for  by  will,  §  420,  p.  692. 
statutory  commissions  of  executor  or  administrator,  §  420,  p.  692. 
statutory  commissions  of  Oregon,  §  420,  p.  693. 
property  not  converted  in  cash  or  delivered  in  kind,  §  420,  p.  693. 
when  commissions  deducted,  §  420,  p.  694. 
services  as  trustee,  §  420,  p.  694. 

allowances  for  additional  compensation,  §  421,  p.  695. 
services  not  ordinarily  required,  §  42-1,  p.  695. 
forfeiture  of  pay,  §  421,  p.  696. 
hearing  on  account. 

notice  of  hearing  and  service  of  same,  §  422,  p.  696. 

waiver  by  parties,  §  422,  p.  696. 

hearing  in  absence  of  executor  or  administrator,  §  422,  p.  698. 

notice  and  service — Oregon  practice,  §  422,  p.  699. 

hearing,  §  423,  p.  700. 

vouchers,  how  considered  on  the  hearing,  §  423,  p.  701. 

objections  to  account,  §  423,  p.  701. 

trial  of  the  issues,  §  423,  p.  701. 

right  to   contest  claims   paid   by   executor  or  administrator,  §  423, 

p.  701. 

determining  attorney  fees,  §  424,  p.  703. 
claims  not  filed,  §  424,  p.  703. 
proof  of  additional  services,  §  424,  p.  704. 

personal  accounts  between  representative  and  estate,  §  424,  p.  705. 
fixing  rental  value  of  real  estate,  §  424,  p.  705. 
guardian  ad  litem  of  minors,  §  424,  p.  705. 
payments  of  legacies  by  executor,  §  424,  p.  705. 
effect  of  order  allowing  account,  §  425,  p.  706. 
power  of  court  over  same,  §  425,  p.  707. 
powers  of  Oregon  county  court  over  order,  §  425,  p.  708. 
joint  account  by  joint  representatives,  §  426,  p.  708. 


INDEX.  1059 

ACCOUNTING  (Continued). 

by  executors  and  administrators. 

separate  accounts  of  joint  representatives,  §  426,  p.  708. 
action  by  creditor  for  accounting,  §  427,  p.  710. 

FORMS. 

Waiver  of  notice  of  Scaring  on  final  account,  No.  181,  p.  697. 
Final  account  of  executor  or  administrator,  No.  185,  p.  698. 
Citation  on  hearing  of  final  account,  No.  186,  p.  699. 
Objections  to  executor's  or  administrator's  account,  No.  187,  p  702. 
Appointment  of  commissioners  to  determine  rent  due  from  executor 

or  administrator,  No.  188,  p.  705. 
Order  allowing  final  account,  No.  189,  p.  707. 

partnership  administrators. 

proceedings  for  an  accounting,  §  238b,  p.  300. 

approval  of  account,  §  238b,  p.  300. 

special  administrator  to  collect,  §  1120,  p.  180. 
for  partnership  matters,  §  241,  p.  364. 
for  mortgaging  real  estate,  §  250,  p.  386. 
by  guardians. 

annual  account,  §  550,  p.  909. 

how  far  binding  on  parties,  §  550,  p.  910. 
charges. 

property  received,  §  551,  p.  910. 

investments,  §  551,  p.  910. 

interest,  §  551,  p.  911. 
credits. 

payments  made  by  order  of  court,  §  552,  p.  912* 

attorney  fees  and  expenses,  §  552,  p.  912. 

services,  §  552,  p.  912. 

jurisdiction  of  court  to  compel  interlocutory  accounting,  §  553,  p.  913. 

jurisdiction  over  final  accounting,  §  558,  p.  921. 

citation  to  guardian,  §  558,  p.  921. 

hearing  in  absence  of  guardian,  §  559,  p.  923. 

proof  of  the  account,  §  559,  p.  924. 

order  allowing  final  account,  §  560,  p.  924. 

appeal  by  guardian  or  ward,  §  560,  p.  924. 

enforcement  of  order,  §  560,  p.  925. 

j  irisdiction  of  court  to  set  aside  order,  §  560,  p.  925. 


1060  INDEX. 

ACCOUNTING  (Continued). 

FORMS. 

Guardian's  annual  account,  No.  252,  p.  914. 
Order  allowing  annual  account  of  guardian,  No.  253,  p.  915. 
Petition  to  require  guardian  to  account,  No.  254,  p.  922. 
Order  to  guardian  to  file  his  final  account,  No.  255,  p.  923. 
Petition  by  guardian  for  release  from  liability,  No.  256,  p.  925. 
Order  approving  final  account  and  releasing  guardian,  No.  257,  p.  926. 

ACTIONS.     See,  also,  JUDGMENTS. 

against  the  personal  representative  or  estate, 
to  revoke  probate  of  will,  §  111,  p.  164. 
actions  which  may  be  revived  with  representative  as  defendant,  §  201, 

p.  297. 

duty  of  representative  to  defend,  §  219,  p.  323. 
defense  by  ancillary  administrator,  §  267,  p.  411. 
.to  recover  general  claims,  §  273d,  p.  427. 
to  recover  contingent  claim,  §  363,  p.  562. 

to  recover  claim  when  notice  to  creditors  not  given,  §  363,  p.  669. 
to  recover  inheritance  tax,  §  408,  p.  669. 

for  specific  performance  of  executory  contracts,  §  257,  p.  401. 
for  specific  performance   of  contract  to   devise   or  bequeath,  §  302, 

p.  464. 
for  enforcement  of  contract  to  sell  or  purchase  real  estate,  §  257, 

p.  401.     See,  also,  SPECIAL  PROCEEDINGS;  VENDORS  AND  VENDEES. 

FORMS. 

Petition   against   executor   or   administrator   to    recover    contingent 
claim,  No.  163,  p.  566. 

by  executor  or  administrator.     See,  also,  SPECIAL  PROCEEDINGS. 
general  right  to  bring  actions,  §  196,  p.  289. 
debt  of  heir  or  legatee  to  the  estate,  §  196,  p.  290. 
revivor  of  actions  pending,  §  202,  p.  297. 
survival  of  causes  of  action,  §  201,  p.  297. 
action  for  causing  death  of  decedent,  §  203,  p.  298. 
foreclosure  of  mortgages,  §  204,  p.  300. 

rule  as  to  diligence  in  bringing  suits  to  recover  assets,  §  206,  p.  302. 
proceedings  for  disclosure  of  assets,  §  197,  p.  291. 
special  proceedings  to  recover  personalty,  §  207,  p.  303. 
ejectment,  §  199,  p.  294. 
forcible  detention,  §  220,  p.  324. 


INDEX.  1061 

ACTIONS  (Continued). 

damages  to  real  estate,  §  200,  p.  296. 
necessary  allegations  of  petition,  §  205,  p.  301. 
by  creditor  of  an  estate. 

for  recovery  of  property  fraudulently  transferred  by  decedent,  §  213, 

p.  314. 

when  action  may  be  brought  to  recover  assets,  §  216,  p.  319. 
against  executor  or  administrator,  §  273c,  p.  426. 
against  heirs  or  devisees,  §  228b,  p.  344. 
claims  for  which  such  action  lies,  §  228b,  p.  344. 
enforcement  of  judgment  against  heir  or  devisee,  §  228b,  p.  345. 
against  heir,  devisee  or  legatee,  §  361,  p.  560. 
against  executor  or  administrator  when  no  notice  to  creditors  given, 

§  363,  p.  565. 
on  bond  of  personal  representative,  §  458,  p.  766.     See,  also,  BONI>— 

OFFICIAL. 

to  set  aside  executors'  and  administrators'  sales, 
party  entitled  to  bring  suit,  §  340,  p.  532. 
limitation  of  time,  §  340,  p.  534. 
void  sales,  §  340,  p.  534. 
voidable  sales,  §  340,  p.  535. 

statutory  requirements  of  a  valid  sale,  §  341,  p.  535. 
statutory  requirements  under  Oregon  practice,  §  341,  p.  535. 
general  rule  concerning  collateral  attack,  §  342,  p.  536. 
irregularities  in  appointment  of  administrator,  §  342,  p.  537. 
sufficiency  of  petition,  §  343,  p.  539. 
order  to  show  cause  and  service  of  same,  §  344,  p.  540. 
jurisdictional  irregularities,  §  345,  p.  541. 
failure  to  give  bond,  §  346,  p.  542. 
failure  to  take  statutory  oath,  §  347,  p.  542. 
sufficiency  of  notice  of  sale,  §  348,  p.  543. 
compliance  with  the  order  of  sale,  §  349,  p.  544. 
proof  of  confirmation,  §  349,  p.  544. 
purchase  by  disqualified  party,  §  350,  p.  545. 
fraud    or   misrepresentations   by    executor   or   administrator,    §  351, 

p.  546. 
rights  of  purchaser  at  voidable  sale,  §  352,  p.  547. 

for  recovery  of  property  transferred  to  defraud  creditors,  §  212, 

p.  310. 

for  recovery  of  gifts  causa  mortis,  §  382,  p.  592. 
by  special  administrator,  §  119,  p.    177. 


1062  INDEX, 

ACTIONS  (Continued). 

by  foreign  executor  or  administrator,  §  260,  p.  404. 
revivor  of  suits  by  foreign  administrator,  §  268,  p.  412. 

action  brought  in  representative  capacity,  §  205,  p.  301. 

action  against  executor  de  son  tort,  §  195,  p.  288. 

to  adjust  indebtedness  of  insolvent  representative,  §  217,  p.  321. 

to  enforce  contribution  between  heirs  or  devisees,  §  228,  p.  339. 
for  dissolution  of  partnership,  §  239,  p.  362. 

to  set  aside  election,  §  431,  p.  718. 

for  enforcement  of  contracts.     See  SPECIFIC  PERFORMANCE. 
guardianship. 

for  recovery  of  property  of  ward,  §  515,  p.  859. 

right  to  maintain  special  proceedings,  §  515,  p.  860. 

by  foreign  guardian  for  sale  of  real  estate,  §  524,  p.  872. 

to  obtain  order  for  delivery  of  personal  property,  §  524,  p.  872. 

duty  of  guardian  in  actions  against  ward,  §  516,  p.  861. 

judgment  against  minor  not  represented  by  guardian  or   guardian 

ad  litem,   §  516,  p.  861. 

to  set  aside  settlement  between  guardian  and  ward,  §  556,  p.  917. 
to  set  aside  guardians'  sales. 

when  action  may  be  brought,  §  539,  p.  895. 

statutory  requirements  of  a  valid  sale,  §  539,  p.  895. 

when  former  ward  estopped  from  bringing  action,  §  540,  p.  897. 

effect  of  act  of  legislature  curing  defects  in  guardians'  deeds,    §  539, 

p.  896. 

party  claiming  adversely  to  ward,  §  541,  p.  897. 
defective  letters  of  guardianship,  §  542,  p.  898. 
defective  description  of  property  in  the  license,  §  542,  p.  899. 
failure  to  give  bond  or  take  oath,  §  543,  p.  899. 
proof  of  notice  of  sale,  §  544,  p.  900. 
purchase  of  lands  by  guardian,  §  544,  p.  900. 

ADMINISTRATORS.     See,  also,  EXECUTORS  AND  ADMINISTRATORS. 
definition,  §  139,  p.  210. 
dispensing    with    appointment    of,   §  132,   p.  202.     See    DISPENSING 

WITH  ADMINISTRATION. 

jurisdiction  of  county  court  to  appoint,  §  140,  p.  211. 
persons  capable  of  administering,  §  141,  p.  212. 
indebtedness  to  the  estate,  §  141,  p.  213. 
right  of  widow  to  administer,  §  142,  p.  214. 


IXDEX.  1063 

ADMINISTRATORS  (Continued). 

right  of  surviving  husband,  §  142,  p.  215. 

corporation  administrator,  §  142,  p.  215. 

right  of  next  of  kin,  §  143,  p.  216. 

right  of  creditor,  §  144,  p.  216. 

renunciation  of  rights,  §  144,  p.  216. 

rule  as  to  nonresidents,  §  145,  p.  217. 

persons  disqualified  by  Oregon  statute,  §  144,  p.  216. 

assets  consisting  solely  of  cause  of  action  for  causing  death  of  the 

decedent,  §  146,  p.  218. 

petition  for  grant  of  letters,  §  147,  p.  219. 
notice  of  hearing  and  service  thereof,  §  148,  p.  221. 
hearing,  §  149,  p.  222. 

right  to  contest  appointment,  §  149,  p.  223. 
discretion  of  court  in  making  appointment,  §  150,  p.  224. 
procedure  for  appointment  in  Oregon,  §  150,  p.  224. 
order  granting  letters,  §  151,  p.  225. 
bond,  §  152,  p.  226. 
bond — Oregon  practice,  §  152,  p.  228. 
oath,  §  153,  p.  228. 
effect  of  entry  of  order,  §  154,  p.  230. 

FORMS. 

Petition  for  letters  of  administration,  No.  57,  p.  220. 
Notice  of  hearing,  No.  58,  p.  228. 

Order  for  appointment  of  administrator,  No.  59,  p.  229. 
Administrator's  bond,  No.  60,  p.  227. 
Oath  of  administrator,  No.  61,  p.  228. 
Letters  of  administration,  No.  62,  p.  229. 
Letters  of  administration — Oregon,  No.  €2a,  p.  230. 
ancillary. 

jurisdiction  of  county  court,  §  263,  p.  407. 

purposes  for  which  appointment  made,  §  264,  p.  407. 

petition  for  appointment,  §  265,  p.  408. 

hearing,  §  266,  p.  410. 

rules  governing  ancillary  administration,  §  267,  p.  411. 

general  powers  and  duties,  §  268,  p.  412. 

rule   of   privity   between   administrators   in    different   states,    §  268, 

p.  413. 

payment  of  local  creditors,  §  269,  p.  414. 
payment  when  estate  insolvent,  §  269,  p.  414. 


1064  INDEX. 

ADMINISTRATORS  (Continued). 

accounting,  §  270,  p.  416.     See,  also,  ACCOUNTING, 
payment  of  legacies  by,  §  271,  p.  417. 
distribution  of  residue,  §  271,  p.  417. 

FORMS. 

Petition  for  appointment  of  ancillary  administrator,  No.  132,  p.  410. 
Decree  for   payment   of   debts — ancillary   administration,   estate   in- 
solvent, No.  133,  p.  415. 

Petition  for  order  for  payment  of  residue  of  estate,  No.  134,  p.  418. 
Decree  of  distribution  of  ancillary  estate,  No.  135,  p.  419. 

de  bonis  non.     See,  also,  EXECUTORS  AND  ADMINISTRATORS. 

definition,  §  169,  p.  251. 

powers  and  duties,  §  169,  p.  251. 

jurisdiction  of  court  to  appoint,  §  170,  p.  252. 

petition  for  appointment,  §  170,  p.  253. 

bond,  §  170,  p.  263. 

accounting  with  predecessor,   §  169,  p.  251. 

inventory,  §  184,  p.  272. 

FORMS. 

Petition  for  appointment  of  administrator  de  bonis  non  on  account 
of  death,  resignation  or  removal  of  executor  or  administrator, 
No.  71,  p.  254. 

Petition  for  appointment  of  administrator  de  bonis  non  after  dis- 
charge of  administrator,  No.  72,  p.  254. 

Order  for  appointment  of  administrator  de  bonis  non,  No.  73,  p.  255. 

Letters  of  administration  de  bonis  non,  No.  74,  p.  255. 

of  partnership. 

definition,  §  238a,  p.  358. 

right  of  survivor  to  appointment,  §  258a,  p.  358. 

supervisory  control  of  court,  §  238,  p.  358. 

powers  and  liabilities,  §  238b,  p.  359. 

accounting,  §  238b,  p.  359. 
special  for  collection  and  care  of  assets. 

when  appointment  may  be  made,  §  115,  p.  171. 

jurisdiction  of  county  court  over,  §  116,  p.  172. 

petition  for,  §  117,  p.  172. 

hearing,  §  117,  p.  173. 

bond,  §  118,  p.  174. 

powers  and  duties,  §  119,  p.  177. 


INDEX.  1065 

ADMINISTRATORS  (Continued), 
accounting  by,  §  120,  p.  180. 
fees  of,  §  120,  p.  180. 
discharge  of,  §  121,  p.  182. 

FORMS. 

Petition  for  appointment  of  special  administrator,  No.  34,  p.  172. 
Order  for  appointment  of  special  administrator,  No.  35,  p.  174. 
Bond  of  special  administrator,  No.  36,  p.  175. 
Letters  of  special  administration — Oregon,  No.  37a,  p.  177. 
Petition  of  special  administrator  for  leave  to  sell  personalty,  No.  38, 

p.  179. 
Order  granting  special  administrator  leave  to  sell  personalty,  No.  39, 

p.  179. 

Account  of  special  administrator,  No.  40,  p.  181. 
Order  approving  account  of  special  administrator,  No.  41,  p.  182. 
Receipt  to  special  administrator,  No.  42,  p.  183. 
Discharge  of  special  administrator,  No.  43,  p.  183. 

special    for    mortgaging    real    estate.     See,    also,    MORTGAGING    REAL 
ESTATE. 

when  appointment  made,  §  247,  p.  379. 

hearing  on  petition  and  application,  §  248,  p.  381. 

duties  of,  §  249,  p.  283. 

report  of  special  administrator,  §  250,  p.  385. 

For  forms,  see  MORTGAGING  REAL  ESTATE. 
special  for  settlement  of  partnership  interests. 

when  appointment  necessary,  §  242,  p.  368. 

powers  and  duties  of,  §  242,  p.  368. 

report  and  discharge,  §  243,  p.  370. 

fees,  §  243,  p.  370. 

For  forms,  see  PARTNERSHIPS. 

with  will  annexed — definition,  §  122,  p.  184. 

jurisdiction  of  court  to  appoint,  §  129,  p.  197. 

powers  and  duties,  §  129,  p.  198. 

preferential  right  to  the  appointment,  §  130,  p.  198. 

procedure  for  appointment,  §  131,  p.  198. 

FORMS. 

Petition  for  letters  of  administration  with  the  will  annexed,  No.  49, 
p.  199. 


1066  INDEX. 

ADMINISTRATORS  (Continued). 

Order  admitting  will  to  probate  and  for  appointment  of  adminis- 
trator with  the  will  annexed,  No.  50,  p.  199. 

Order  for  appointment  of  administrator  with  the  will  annexed  on 
account  of  failure  of  executor  named  to  give  bond,  No.  51,  p.  200. 

Letters  of  administration  with  the  will  annexed,  No.  52,  p.  200. 

ADOPTION  OF  CHILDREN, 
defined,  §  564,  p.  933. 
who  may  be  adopted,  §  564,  p.  934. 
parties  capable  of  adopting,  §  565,  p.  934. 
consent  of  parents,  §  566,  p.  935. 
consent  of  guardians,  §  566,  p.  935. 
authorizing  guardian  to  give  consent,  §  566,  p.  936. 
consent  of  next  of  kin  or  next  friend,  §  566,  p.  936. 
jurisdiction  of  county  court  over  adoption  proceedings,  §  567,  p.  938. 
petition  for  adoption,  §  567,  p.  937. 

right  of  court  to  proceed  as  if  parents  dead,  §  567,  p.  937. 
notice  of  hearing  and  service  of  same,  §  568,  p.  943. 
notice  under  Oregon  practice,  §  568,  p.  943. 
hearing,  §  569,  p.  944. 
proof  of  abandonment,  §  569,  p.  944. 
presence  of  child  in  court,  §  569,  p.  945. 
hearing  under  Oregon  practice,  §  569,  p.  945. 
effect  of  decree  of  adoption,  §  570,  p.  947. 
when  subject  to  collateral  attack,  §  570,  p.  948. 
appeal  from  decree,  §  570,  p.  947. 

FORMS. 

Relinquishment  by  parents  and  consent  to  adoption,  No.  259,  p.  938. 
Relinquishment  by  one   parent    and   consent   to   adoption,   No.    260, 

p.  939. 

Relinquishment  of  custody  of  child  by  parent,  No.  262,  p.  940. 
Petition  by  corporation  guardian  for  consent  to  adoption,  No.  263, 

p.  941. 

Order  authorizing  guardian  to  consent  to  adoption,  No.  264,  p.  942. 
Consent  of  child  over  fourteen  years  to  adoption,  No.  265,  p.  942. 
Petition  for  adoption  of  child,  No.  266,  p.  942.  — 
Notice  of  hearing  on  petition  for  adoption,  No.  267,  p.  944. 
Decree  of  adoption,  No.  268,  p.  946. 


INDEX.  1067 

ADVANCEMENTS. 

defined,  §  383,  p.  593. 

real  estate,  §  383,  p.  593. 

how  charged,  §  383,  p.  593. 

to  whom  made,  §  383,  p.  594. 

death  of  donee  before  ancestor,  §  383,  p.  594. 

revoking  or  rescinding  advancement,  §  385,  p.  594. 

evidence  necessary  to  prove  an  advancement,  §  386,  p.  595. 

doctrine  of  intent,  §  385,  p.  595. 

application  of  advancement  to  testate  estates,  §  387,  p.  596. 

determining  value  of  advancements,  §  387,  p.  596. 

how  advancements  considered  on  distribution,  §  385,  p.  597. 

jurisdiction  of  county  or  district  court  over,  9  385,  p.  598. 

ALIENS. 

limitations  on  right  of  inheritance,  §  442,  p.  737. 
proceedings  by  alien  for  sale  of  his  inheritance,  §  442,  p.  738. 
proceedings  by  county  for  appraisement  and  sale,  §  442,  p.  738. 

ALLOWANCE  FOR  SUPPORT  OP  SURVIVING  SPOUSE  OR 

FAMILY. 

right  of  spouse  or  heirs  to  specific  property,  §  186,  p.  274. 
specific  property  under  Oregon  statutes,  §  186,  p.  274. 
right  of  widow  to  allowance,  §  187,  p.  275. 
rights  of  minor  children  to  allowance,  §  187,  p.  275. 
purpose  of  allowance,  §  188,  p.  276. 
how  allowance  barred,  §  189,  p.  277. 
right  of  court  to  modify  order,  §  190,  p.  278. 
precedence  of  allowance,  §  191,  p.  279. 
procedure  for  obtaining  allowance,  §  192,  p.  280. 
nature  of  the  order,  §  192,  p.  281. 
appeals,  §  192,  p.  281. 
power  of  court  to  sell  real  estate  for  payment,  §  309,  p.  471. 

FORMS. 

Petition  of  widow  for  allowance  and  assignment  of  personal  prop- 
erty, No.  82,  p.  282. 

Petition  for  allowance  for  support  of  minor  children,  No.  83,  p.  283. 

Notice  of  application  for  allowance  and  assignment  of  personal 
property,  No.  84,  p.  284. 

Order  granting  allowance  and  assigning  personal  property  to  widow, 
No.  85,  p.  285. 


1068  INDEX. 

APPEALS. 

jurisdiction  of  district  court,  on  appeals,  5  473,  p.  789. 

jurisdiction  of  the  circuit  court,  §  473,  p.  790. 

rights  of  parties  to  an  appeal,  §  474,  p.  790. 

what  are  final  orders,  §  475,  p.  791. 

when  personal  representative  a  proper  appellant,  §  474,  p.  791. 

appeals  by  personal  representative,  §  476,  p.  793. 

appeals  from  decisions  adverse  to  parties,  §  477,  p.  795. 

bond  of  appellant,  §  477,  p.  796. 

appeals  by  interested  parties  from  decisions  adverse  to  the  estate, 
§  478,  p.  797. 

special  bond,  §  478,  p.  797. 

transcript,  §  479,  p.  799. 

failure  to  docket  appeal,  §  479,  p.  799. 

notice  of  appeal,  §  476,  p.  793. 

oral  notice,  §  476,  p.  794. 

appeal  without  bond,  §  476,  p.  794. 

when  appeal  deemed  perfected,  §  476,  p.  795. 

filing  transcript,  §  479,  p.  800. 

jurisdictional  requirements,  §  479,  p.  800. 

effect  of  appeals  on  petition  for  probate  of  will  or  letters  of  ad- 
ministration, §  480,  p.  801. 

effect  of  supersedeas  bond,  §  480,  p.  801. 

sufficiency  of  transcript,  §  481,  p.  802. 

questioning  appeals  without  bond,  §  481,  p.  802. 

trials  of  appeals  in  district  court,  §  481,  p.  803. 

jury  trial,  §  481,  p.  804. 

when  tried  as  appeals  in  civil  cases,  §  481,  p.  803. 

when  tried  as  appeals  in  equity,  §  481,  p.  804. 

failure  to  perfect  appeal,  §  482,  p.  804. 

judgment  of  appellate  court,  §  483,  p.  806. 

FORMS. 

Notice  of  appeal  by  executor  or  administrator,  No.  208,  p.  793. 
Bond  of  appellant,  No.  209,  p.  796. 

Bond  of  creditor  on  appeal  from  allowance  of  the  claim  of  another 
creditor,  No.  210,  p.  798. 

by  guardians. 

right  of  guardian  to  appeal  to  the  district  court,  §  563a,  p.  932. 


INDEX.  1069 

APPRAISERS. 

general  appraisers  of  the  estate, 
appointment  of,  §  182,  p.  268. 
duties,  §  183,  p.  270. 
of  estate  of  ward,  §  510,  p.  852. 

FORMS. 

Petition  for  appointment  of  appraisers,  No.  77a,  p.  269. 
General  order,  No.  78,  p.  269. 
Appointment  of  appraisers,  No.  79,  p.  270. 
Oath  of  appraisers,  No.  80,  p.  271. 
Certificate  of  appraisers,  No.  81,  p.  272. 
inheritance  tax  appraisers.     See,  also,  INHERITANCE  TAX. 
appraisers  to  set  out  homestead,  §  393,  p.  631. 
•when  appointed,  §  400,  p.  646. 
appointment  under  Oregon  practice,  §  401,  p.  649. 
notice  to  interested  parties,  §  401,  p.  648. 
general  duties,  §  402,  p.  650. 
power  to  issue  process,  §§  400,  401,  p.  648. 
fees  of  appraisers,  §  23,  p.  33. 
costs  and  expenses,  §  403,  p.  660. 
Forms,  see  INHERITANCE  TAX. 

ARBITRATION. 

right  of  executor  or  administrator  to  submit  claim  to  arbitration, 

§210,  p.  308. 
right  of  special  administrator,  §  119,  p.  178. 

ASSETS  OF  THE  ESTATE. 

inventory  of.     See  INVENTORY. 
appraisement  of.     See  APPRAISERS. 
personal  property. 

custody  of  by  special  administrator,  §  119,  p.  177. 

right  of  possession  by  executor  or  administrator,  §  193,  p.  285. 

exceptions  to  general  rule,  §  193,  p.  286. 

possession  previous  to  grant  of  letters,  §  194,  p.  287. 

property  not  subject  to  debts,  §  196,  p.  289. 

limitation  on  right  of  executor  or  administrator,  §  196,  p.  290. 

debt  of  heir  or  legatee,  §  196,  p.  290. 

proceedings  for  disclosure  of  assets,  §  197,  p.  291. 


1070  INDEX. 

ASSETS  OF  THE  ESTATE  (Continued). 

damages  for  causing  death  of  decedent,  §  203,  p.  298. 

mortgage  foreclosures,  §  204,  p.  300. 

general  rule  of  diligence  in  collecting  assets,  §  206,  p.  302. 

special   proceedings    for   recovery   of    personalty,  §  207,  p.  303.     See, 

also,  SPECIAL  PROCEEDINGS. 

compromising  debts  due  estate,  §  209,  p.  307.     See,  also,  COMPROMISE. 
property   transferred   to   defraud   creditors,  §  215,  p.  318.     See,   also, 

FRAUDULENT  CONVEYANCES. 
right  of  creditor  to  collect  assets,  §  216,  p.  319. 
debt  of  executor  or  administrator  to  the  estate,  §  217,  p.  320. 
general  powers  of  executor  or  administrator  over  assets,  §  218,  p.  322. 
delivery  to  heirs  or  legatees  pending  administration,  §  227,  p.  335. 
delivery  pending  administration — Oregon  rule,  §  227,  p.  336. 
right  of  representative  to  repossession,  §  227,  p.  335. 
recovery  of  assets  from  distributees,  §  228a,  p.  342. 
investments  of  assets,  §  229,  p.  345.     See,  also,  INVESTMENTS. 
assets  used  in  carrying  on  decedent's  business,  §  232,  p.  349. 
liability  of  executor  or  administrator,  §  233,  p.  350. 
right  of  creditor  to  follow  assets,  §  226,  p.  333. 
sales,  §  223,  p.  329.     See,  also,  SALES  OF  PERSONAL  PROPERTY. 

real  estate. 

rights  of  possession  under  the  statutes,  §  198,  p.  294. 

when  possession  taken  by  executor  or  administrator,  §  199,  p.  295. 

ejectment,  §  200,  p.  296. 

action  for  trespass,  §  200,  p.  296. 

management  of,  §  220,  p.  323. 

leases,  §  220,  p.  324. 

taxes  and  insurance  premiums,  §  220,  p.  324. 

eales  by  executor,  §  221,  p.  325. 

sales  by  administrator  with  the  will  annexed,  §  222,  p.  327. 

delivery  of  deed  deposited  in  escrow,  §  251,  p.  388. 

contract  for  purchase  or  sale,  §  252,  p.  389.     See,  also,  VENDORS  A.ND 

VENDEES. 

options  as  to  remedy  of  executor  or  administrator,  §  252,  p.  389. 
rights  of  devisees  in.     See  DEVISEES. 
descent  of.     See  DESCENT. 

ATTESTATION  OF  WILL. 
definition,  §  44,  p.  65. 


INDEX.  1071 

ATTORNEYS. 

persons  entitled  to  practice  in  county  court,  §  15,  p.  24. 

as  guardians  ad  litem,  §  16,  p.  25. 

fees  of  in  will  contests,  §  104,  p.  156. 

services  for  executor  or  administrator,  §  418,  p.  688. 

general  rule  as  to  amount,  §  419,  p.  688. 

fees  when  party  is  also  executor  or  administrator,  §  419,  p.  690. 

liability  of  executor  or  administrator,  §  419,  p.  691. 

fees  of  attorneys  for  beneficiaries,  §  424,  p.  704« 


B 

BLIND  PERSONS. 

testamentary  capacity  of,  §  49,  p.  82. 

BONDS— APPEAL. 

of  adverse  party,  §  477,  p.  795. 

of  appellant  from  order  adverse  to  the  estate,  §  478,  p.  797. 

of  appellant — Oregon  practice,  §  476,  p.  794. 

effect  of,  §  480,  p.  801. 

supersedeas  bond  in  error  proceedings,  §  486,  p.  810. 

from  order  assessing  inheritance  tax,  §  404,  p.  661. 

Forms,  see  APPEALS;  WRIT  oy  ERROR;  INHERITANCE  TAX. 

BONDS— INDEMNITY. 

in  action  to  set  aside  fraudulent  transfers,  §  214,  p.  315. 
on  delivery  of  property  to  heir  or  legatee,  §  227,  p.  335. 
to  stay  sales  of  real  estate,  §  318,  p.  493. 
on  sale  of  contract  interest  in  lands,  §  333,  p.  521. 
to  secure  payment  of  inheritance  tax,  §  405,  p.  663. 

Forms,  see  FRAUDULENT  CONVEYANCES;  HEIRS;  SALES;  INHERIT- 
ANCE TAX. 

BONDS— OFFICIAL. 

actions  on. 

liability  on  separate  bonds  of  joint  executors  and  administrators, 

§  457,  p. 765. 

necessary  allegations  of  petition  on,  §  471,  p.  783. 
effect  of  recitals  in  bond,  §  471,  p.  783. 
privity  between  sureties  and  principal,  §  471,  p.  784. 
termination  of  liability,  §  471,  p.  784. 


1072  INDEX. 

BONDS— OFFICIAL  (Continued), 
available  defenses,  §  471,  p.  784. 
when  action  barred,  §  472,  p.  788. 

FORMS. 
Application  for  permission  to  bring  suit  on  a  probate  bond,  No.  202, 

p.  776. 
Application  of  administrator  de  bonis  non  for  leave  to  bring  suit  on 

bond  of  his  predecessor,  No.  203,  p.  777. 

Order  granting  permission  to  bring  suit  on  bond,  No.  204,  p.  777. 
Certificate  of  permission  to  bring  suit  on  bond,  No.  205,  p.  778. 
Petition  by  creditor  against  sureties  on  administration  bond,  No.  206, 

p.  785. 
Petition  for  conversion,  No.  207,  p.  786. 

administrators. 

amount  and  conditions,  §  152,  p.  226. 

ancillary  administrator,  §  205,  p.  408. 

partnership  administrator,  §  238a,  p.  358. 

special  administrator,  §  119,  p.  177. 

special  administrator,  partnership  assets,  §  242,  p.  368. 

Forms  of  bonds,  see  titles  of  different  administrators, 
county  judge. 

amount,  §  2,  p.  3. 

conditions,  §  2,  p.  4. 

liability  of  sureties  on,  §  3,  p.  5. 

For  forms,  see  JUDGES. 
guardians.     See,  also,  SALES  OF  REAL  ESTATE. 

amount  and  condition,  §  504,  p.  839. 

testamentary  guardian,  §  504,  p.  840. 

general  rule  of  construction  of,  §  504,  p.  840. 

action  on  bond  of  predecessor,  §  509,  p.  850. 

BONDS^PROBATE. 

purpose  for  which  given,  §  453,  p.  761. 

omitted  conditions,  §  454,  p.  762. 

informalities  and  irregularities,  §  454,  p.  763. 

application  for  reduction  of  penalty  on  bond,  §  126,  p.  192. 

common-law  bond,  §  455,  p.  763. 

additional  or  cumulative  bond,  §  456,  p.  764. 

proceedings  for  release  of  sureties,  §  455,  p.  763. 


INDEX.  1073 

BONDS— PKOBATE  (Continued). 

liability  of  new  bondsmen,  §  455,  p.  763. 
proceedings  for  obtaining  new  bond,  §  164,  p.  241. 
new  or  additional  bond — Oregon,  §  164,  p.  241. 
sales  for  payment  of  debts — domestic  representatives,  §  324,  p.  500. 
sales  for  payment  of  debts — foreign  representatives,  §  335,  p.  524. 
actions  on. 

parties  entitled  to  bring,  §  458,  p.  766. 

determining  liability  of  executor  or  administrator,  §  459,  p.  767. 

when  liability  attaches,  §  469,  p.  768. 

proceedings  required  by  common  law  to  fix  liability,  §  459,  p.  768. 

decree  of  court  as  a  judgment  fixing  liability,  §  460,  p.  769. 

conversion  of  assets,  as  basis  of  liability,  §  461,  p.  77Q. 

failure  to  administer  according  to  directions  of  will,  §  461,  p.  771. 

nonpayment  of  legacy  or  share,  §  462,  p.  772. 

misapplication  of  proceeds  of  sales  of  lands,  §  462,  p.  772. 

demands  not  liabilities  of  the  bondsmen,  §  463,  p.  773. 

liability  on  residuary  legatee's  bond,  §  464,  p.  774. 

liability  of  suit  of  administrator  de  bonis  non,  §  465,  p.  774. 

obtaining  permission  to  bring  suit  on  bond,  §  466,  p.  775. 

when  permission  not  required,  §  466,  p.  778. 

when  action  accrues,  §  467,  p.  778. 

general  rule  as  to  liability  of  sureties,  §  468,  p.  779. 

liability  when  executor  also    a  trustee,  §  468,  p.  780. 

liability  when  letters  granted  on  the  estate  of  a  living  person,  §  468, 

p.  781. 

liability  for  debt  of  insolvent  representative,  §  468,  p.  781. 
liability  in  regard  to  management  or  sale  of  real  estate,  §  468,  p.  782. 
liability  for  proceeds  of  lands  sold  for  debts,  §  470,  p.  782. 
cf  joint  bond  of  executors  and  administrators,  §  457,  p.  765. 

guardians. 

additional  bond,  §  525,  p.  872. 
effect  of  new  bond,  §  525,  p.  873. 
new  bond — Oregon  rule,  §  525,  p.  873. 
bond  on  sale  of  real  estate,  §  533,  p.  884. 

liability  on  bond  after  settlement  has  been  set  aside,  §  556,  p.  918. 
when  liability  terminates,  §  561,  p.  927. 
general  rule  of  liability  of  sureties,  §  561,  p.  927. 
release  of  cosurety,  §  562,  p.  928. 
when  action  accrues,  §  363,  p.  929. 
estoppel  of  bondsmen,  §  563,  p.  930. 
68 — Pro.  Ad. 


1074  INDEX. 

BONDS— PROBATE  (Continued). 

FORMS. 
Petition  on  guardian's  bond,  No.  268,  p.  931. 

aupersedeas. 

when  required,  §  486,  p.  810. 

under  Oregon  practice,  §  486,  p.  813. 

BOOKS  OF  ACCOUNT. 

admissibility  in  proof  of  claim,  §  305,  p.  468. 
presumption  of  regularity,  §  305,  p.  469. 

BURDEN  OF  PROOF. 

execution  of  wills,  §  81,  p.  122. 

testamentary  capacity,  §  85,  p.  130. 

undue  influence,  §  89,  p.  138. 

on  petition  to  revoke  probate  of  will,  §  112,  p.  168. 

order  dispensing  with  administration,  §  134,  p.  205. 

hearing  for  letters  of  administration,  §  149,  p.  222. 

application  for  removal  of  executor  or  administrator,  §  167,  p.  245. 

establishing  claim  against  estate,  §  282,  p.  448. 

property  transferred  to  avoid  inheritance  tax,  §  398,  p.  642. 

hearing  on  final  account,  §  423,  p.  701. 

application  of  posthumous  child  for  share  in  the  estate,  §  440,  p.  733. 

application  of  child  omitted  from  will  for  share,  §  440,  p.  733. 

rule  under  Oregon  statute,  §  440,  p.  735. 

hearing  on  decree  for  distribution,  §  449,  p.  748. 

hearing  on  guardian's  account,  §  559,  p.  924. 

BURIAL. 

right  to  determine  place  of,  §  284,  p.  443. 
duty  of  next  of  kin,  §  284,  p.  443. 

0 

CHILDREN.     See,  also,  DESCENT;  DISTRIBUTION;  GUARDIANS. 
meaning  of  term  as  used  in  wills,  §  38,  p.  54. 
right  of  parent  to  disinherit,  §  90,  p.  138. 
rights  of  in  specific  property,  §  186,  p.  274. 
allowances  for  support,  §  187,  p.  275. 
descent  of  property  of  an  illegitimate,  §  437,  p.  729. 


INDEX.  1075 

CHILDREN   (Continued). 

acknowledgment  of  illegitimate  child,  §  438,  p.  729. 
inheritance  by  illegitimate  child  from  mother.  §  438,  p.  730. 
inheritance  by  illegitimate  child  from  father,  §  438,  p.  730. 
rights  of  posthumous  child,  §  440,  p.  733. 
rights  of  pretermitted  child,  §  440,  p.  733. 
removal  of  from  houses  of  ill-fame,  §  494,  p.  824. 
determining  custody  of  by  habeas  corpus,  §  511,  p.  854. 
adoption  of.     See,  also,  ADOPTION. 

FORMS. 
Petition  for  order  setting  out  share  of  posthumous  child,  No.  194, 

p.  734. 

Notice  of  hearing  on  petition  of  posthumous  child,  No.  195,  p.  735. 
Order  setting  out  share  of  posthumous  child,  No.  196,  p.  736. 
Petition  by  child  omitted  in  the  will  for  a  share  in  the  estate,  No.  197, 

p.  737. 

CLAIMS.     See  DEBTS  or  DECEDENT. 

CLERK  OF  COUNTY  COURT.     See  COUNTY  COUBT. 

CODICIL. 

definition,  §  25,  p.  38. 

when  it  republishes  will  irregularly  executed,  §  46,  p.  67. 

COLLATERAL  ATTACK  OX  SALES  OF  LANDS  FOR  PAYMENT 
OF  DEBTS.  See  ACTIONS  TO  SET  ASIDE  EXECUTORS'  AND  AD- 
MINISTRATORS' SALES. 

COLLATERAL  ATTACK  ON  GUARDIANS'  SALES.  See  ACTIONS  TO 
SET  ASIDE  SALES  OF  LANDS  BY  GUARDIANS. 

COMMISSIONER  TO   SET  OFF  DOWER, 
appointment  of,  §  388i,  p.  612. 

COMPROMISE  OF  DEBTS  AND  DEMANDS, 
compromise  by  order  of  court,  §  208,  p.  305. 
compromise  without  order,  §  209,  p.  307. 
claims  which  may  be  compromised,  §  209,  p.  308. 
liability  of  representative,  §  209,  p.  308. 


1076  INDEX. 

COMPROMISE  OF  DEBTS  AND  DEMANDS  (Continued), 
compromise  of  real  estate  contract,  §  211,  p.  309. 
compromise  of  claims  by  guardians,  §  518,  p.  863. 

FORMS. 

Petition  to  compromise  debt,  No.  91,  p.  306. 
Order  permitting  compromise  of  debt,  No.  92,  p.  307. 

CONSTABLES. 

service  of  process  by,  §  14,  p.  23. 
fees  of,  §  21,  p.  32. 

CONSTRUCTION  OF  WILLS.     See  WILLS — PREPARATION. 
jurisdiction  of  county  court,  §  11,  p.  19. 

CONTEMPT  OF  COURT. 

powers  of  county  court  to  punish  for  contempt,  §  11,  p.  18. 
failure  to  produce  will,  §  76,  p.  142. 
failure  to  disclose  assets,  §  198,  p.  293. 

CONTESTS  OF  WILLS.     See  WILLS. 

CONTRACTS.     See,  also,  DEBTS  OF  DECEDENT;  SPECIFIC  PERFORMANCE; 

VENDORS  AND  VENDEES. 
of   executor   or   administrator   in   matters   pertaining   to   the   estate, 

§  230,  p.  349. 

exception  in  ease  of  nonresident,  §  230,  p.  348. 
liability  of  estate  on  contracts  of  decedent,  §  231,  p.  348. 
liability  on  express  contracts,  §  288,  p.  448. 
liability  on  implied  contract,  §  289,  p.  450. 
to  devise  or  bequeath,  §  302,  p.  464. 

to  make  party  an  heir  or  give  him  a  share  in  the  estate,  §  303,  p.  466. 
when  enforced  as  claims  against  the  estate,  §  302,  p.  465. 
consideration  of  such  contracts,  §  303,  p.  466. 

of  guardians. 

natural  guardians,  §  491,  p.  821. 
judicial  guardians,  §  517,  p.  862. 
for  necessaries,  §  512,  p.  887. 

of  wards. 

of  spendthrift  pending  hearing  on  complaint,  §  502,  p.  838. 


INDEX.  1077 

CONTRACTS  (Continued). 

for  necessaries,  §  512,  p.  857. 

contracts  by  minor  for  his  own  services,  §  514,  p.  858. 

between  guardian  and  ward  for  sale  of  ward's  property,  §  556,  p.  917. 

COSTS  OF  ADMINISTRATION, 
court  fees.     See  COSTS  OF  COURT. 

executors'  and  administrators'  commissions,  §  420,  p.  692. 
fees  for  special  services,  §  421,  p.  695. 
special  administrators'  fees,  §  120,  p.  180. 
attorney  fees,  §  419,  p.  688. 
traveling  expenses,  §  418,  p.  688. 
agents  and  bookkeepers,  §  418,  p.  688. 
care  and  custody  of  property,  §  518,  p.  688. 
taxes,  repairs  and  insurance,  §§  220,  424,  pp.  324,  705. 

COSTS  OP  COURT. 

items  of  county  court   costs,   §  20,  p  31. 

items  of  costs  of  clerk  of  county  court,  §  23,  p.  33. 

of  officers  of  the  court.     See  under  title  of  each  officer. 

costs  in  will  cases,  §  104,  p.  156. 

in  proceedings  to  set   aside  fraudulent  conveyance  of  decedent, 

§  214,  p.  315. 

mortgaging  real  estate  under  license,  §  250,  p.  385. 
special  proceedings  for  transfer  of  real  estate,  §  256,  p.  397. 
sales  of  real  estate  under  license  of  court,  §  336,  p.  526. 
of  inheritance  tax  appraisement,  §§  401,  403,  p.  648. 

COSTS  OF  GUARDIANSHIP, 
guardians'  fees,  §  552,  p.  912. 
when  fees  forfeited.  §  552,  p.  913. 
attorney  fees,  §  552,  p.  912. 

costs  of  management  of  property,  §  552,  p.  912. 
expenses  of  investments,  §  552,  p.  912. 

COUNTY  ATTORNEY. 

duties  of,  collection  of  inheritance  tax,  §  400,  pp.  646,  669. 
in  regard  to  escheats,  §  442,  p.  738. 

COUNTY  COURT. 

organization,  §  1,  p.  2. 


1078  INDEX. 

COUNTY  COTJET  (Continued), 
terms  and  sessions,  §  1,  p.  2. 

jurisdiction,  statutory  and  constitutional,  §  9,  p.  14.  k 

under  Oregon  statute,  §  9,  p.  16. 
jurisdiction,  equitable,  §  10,  p.  17. 
jurisdiction,  inherent  or  implied,  §  11,  p.  18. 
power  over  its  decrees,  §  11,  p.  19. 
power  to  construe  wills,  §  11,  p.  19. 
practice  and  procedure,  §  13,  p.  21. 
practice  and  procedure — Oregon,  §  13,  p.  22. 
process  and  service  of  same,  §  14,  p.  23. 
records  of,  §  17,  p.  26. 
records  of  Oregon  practice,  §  17,  p.  28. 
certifying  records,  §  18,  p.  29. 
fees  of,  §  20,  p.  30. 

official  depository  of  wills,  §  73,  p.  108. 
clerk  of. 

appointment,  powers  and  duties,  §  12,  p.  19. 
county  clerk  as  ex  officio,  §  12,  p.  20. 
fees  of  ex-officio  clerk,  §  23,  p.  35. 

FORMS. 
Oath  of  clerk  of  county  court,  No.  9,  p.  20. 

COUNTY  JUDGE.     See  JUDGES. 

COUNTY  TREASURER. 

duties  in  regard  to  property  alleged  to  be  liable  for  an  inherit- 
ance tax,  §  400,  p.  646. 

payment  of  inheritance  tax  to,  §  406,  p.  667. 

payment  by  foreign  representative  on  transfer  of  stocks,  §  406, 
p.  667. 

receipts  of,  §  406,  p.  667. 

payment  of  costs  of  appraisement,  §  401,  p.  648. 

refunding  overpayments,  §  407,  p.  668. 

CREDITORS.     See,  also,  ACTIONS  BY  CREDITORS;  DEBTS  OF  DECEDENT; 

HEIRS;  LEGATEES;  DEVISEES. 

appointment  of  as  administrator,  §§  142,  144,  pp.  214,  217. 
as  petitioner    for    removal    of    executor    or    administrator,    §  165, 

p.   242. 


INDEX.  1079 

CREDITORS  (Continued). 

as  plaintiff  in  action  to  set  aside  fraudulent  conveyance,  §  213, 

p.  314. 

right  to  follow  assets  into  the  hands  of  third  parties,  §  226,  p.  333. 
rights  of  foreign  creditor  in  local  assets,  §  269,  p.  413. 
general  lien  of  on  assets  of  the  estate,  §  272,  p.  421. 
right  to  contest  claims,   §  282,  p.  440. 

appeals  from  orders  allowing  claims,  §§  477,  478,  pp.  795,  797. 
legacy  to,  §  373,  p.  579. 

right  to  contest  administration  account,  §  423,  p.  700. 
action  on  bond  of  representative,  §  458,  p.  766. 

CURTESY.     See,  also,  DOWER. 
definition,  §  388a,  p.  593. 
in  equitable  estates,  §  388d,  p.  605. 
requisites  of,   §  388e,  p.  605. 
how  barred,  §  388f,  p.  606. 
election,  §  388g,  p.  609. 

assignment  of  by  county  court,  §  388i,  p.  611. 
Forms,  see  DOWER. 


DEATH. 

allegations  of  in  petition  for  probate  of  will,  §  79,  p.  119. 
on  appointment  of  administrator,  §§  140,  149,  pp.211,  222. 
absence  or  disappearance  of  party,  §  140,  p.  211. 

DEBTS  OF  DECEDENT. 

claims  of  unsuccessful  proponent  of  will,  §  104,  p.  156. 

of  general  creditors,  §  272,  p.  421. 

of  holders  of  specific  liens,  §  276,  p.  431. 

of  cestui  que  trust,  §  278,  p.  435. 

for  trespass  or  in  tort,  §  2&6,  p.  447. 

for  an  accounting,  §  286,  p.  447. 

claims  becoming  due  after  death,  §  287,  p.  447. 

for  breach  of  covenant,  §  296,  p.  458. 

of  nonresident,  §  297,  p.  458. 

of  nonresident,  when  administration  is  ancillary,  §  269,  p.  414. 

joint  liabilities,   §  298,  p.  459. 

of  executor  or  administrator,   §  299,  p.  460. 

contingent  claims,  §  300,  p.  461. 


1080  INDEX. 

DEBTS  OF  DECEDENT  (Continued). 

services  rendered  under  an  express  contract. 

general  demands,   §  288,   p.  448. 

amount  of  recovery,  §  288,  p.  449. 

•when  payment  to  be  made  by  bequest  or  devise,  §  302,  p.  465.     See, 
also,  CONTRACTS;  SPECIFIC  PERFORMANCE. 

recovery  on  quantum  meruit,  §  303,  p.  466. 
— —  services  rendered  under  an  implied  contract. 

general  rule  as  to  continuance  of  family  relation,  §  289,  p.  449. 

circumstances  from  Tvhich  contract  will  be  implied,  §  290,  p.  450. 

persons  not  related,  §  290,  p.  451. 

amount  of  recovery,   §  290,  p.  451. 
establishment  of  claims. 

creditor's  interest  in  assets,  §  272,  p.  421. 

jurisdiction  of  county  court  over,  §  273,  p.  422. 

times  and  places  for  hearing  claims,  §  274,  p.  428. 

notice  to   creditors,   §  275,  p.  429. 

claims  secured  by  liens,  §  276,  p.  432.     See,  also,  LIENS. 

property  held  by  bailee,  §  276,  p.  433. 

judgments  against  decedent,  §  276,  p.  433.     See,  also,  JUDGMENTS. 

demands  on  which  actions  are  pending,  §  276,  p.  431. 

liabilities  of  holders  of  corporate  stock,  §  277,  p.  435. 

claim  for  real  estate,  §  277,  p.  434. 

claim  under  land  contract,  §  277,  p.  434. 

property  held  in  trust,  §  278,  p.  435. 

bar  of  statute  of  limitations,  §  279,  p.  436.     See,  also,  STATUTE  o» 
LIMITATIONS. 

bar  of  the  statute  of  nonclaim,  §  280,  p.  437. 

bar  of  two-year  limitation,  §  281,  p.  439. 

stating  demands,  §  282,  p.  440. 

duty  of  executor  or  administrator,  §§  282,  283,  p.  441. 

pleadings,  §  283,  p.  441. 

dismissal  of  actions  and  filing  same  as  claims,  §  283,  p.  442. 

prosecution  of  claims  by  assignee,  §  283,  p.  442. 

proof  of  judgments,   §  283,  p.  442. 

proof  of  uncontested  claim,  §  283,  p.  443. 

burden  of  proof,  §  283,  p.  443. 

statutory  rule  regarding  transactions  and  conversations  with  dece- 
dent, §  291,  p.  451. 

what  constitutes  a  transaction,  §  291,  p.  452. 


INDEX.  1081 

DEBTS  OF  DECEDENT  (Continued). 

what  constitutes  direct  legal  interest,  §  293,  p.  454. 

competency  of  claimant,   §  292,  p.  453. 

who  is  an  adverse  party,  §  293,  p.  454. 

rule  when  part  of  transaction  is  proved  by  the  representative,  §  294, 

p.  456. 

declarations  to  third  parties,  §  295,  p.  457. 
proof  of  contingent  claim,  §  301,  p.  463. 
books  and  writings,   §  305,  p.  468. 
appeals  to  district  court.     See,  also,  APPEALS. 

FORMS. 

Notice  to  creditor,  No.  136,  p.  430. 
Affidavit  verifying  claim,  No.  137,  p.  441. 

allowance  by  executor  or  administrator,  §  273a,  p.  423. 

what  constitutes  presentation,   §  273a,  p.  423. 

duty  of  representative,  §  273b,  p.  424. 

proof  before  executor  or  administrator,  §  273a,  p.  423. 

right    of   claimant    to    summary   proceedings   before    county   court, 

§  273c,  p.  426. 
proceedings,  §  273c,  p.  426. 
proof  of  claim,  §  273c,  p.  426. 
action  against  administrator,  §  273d,  p.  427. 
hearing  claim  before  referee,   §  273d,  p.  428. 
notice  for  presentation  of  claims,  §  275,  p.  430. 

FOEMS — OREGON. 

Verification  of  claim,  No.  135a,  p.  425. 
Claim  on  a  promissory  note,  No.  135b,  p.  425. 
Notice  of  filing  claim — Oregon,  No.  135c,  p.  427. 
Agreement  for  reference  of  claim — Oregon,  Xo.  135d,  p.  428. 
Notice  to  creditors — Oregon,  No.  136a,  p.  431. 

payment. 

when  payable,  §  353,  p.  548. 

extension  of  time  for  payment,  §  353,  p.  549. 

payment  after  filing  first  periodical  account,  §  353,  p.  551. 

subsequent  orders  for  payment,  §  353,  p.  551. 

time  granted  an  administrator  de  ftonis  non,  §  354,  p.  552. 

assets  liable  for  payment,  §  355,  p.  552. 

assets  set  apart  by  will  for  debts,  §  355,  p.  553. 


1082  INDEX. 

DEBTS  OF  DECEDENT   (Continued). 

order  of  application  of  personalty  of  a  testator  for  debts,   §  356, 

p.  554. 

property  constituting  a  primary  fund  for  debts,  §  357,  p.  554. 
directions  to  executor  to  pay,  §  357,  p.  555. 
debts  charged  on  real  estate,  §  358,  p.  555. 
general  intention  to  release  personalty,  §  358,  p.  556. 
assets  not  liable  for  debts,  §  359,  p.  556. 
mortgage  liens. 

power  of  administrator  to  satisfy  mortgage,  §  360,  p.  557. 
rule  in  regard  to  mortgage  liens,  testate  estates,  §  360,  p.  558. 
common-law  rule,  §  360,  p.  559. 

redemption  of  mortgages  by  order  of  county  court,  §  360,  p.  557. 
proceedings  for  obtaining  order  to  redeem,  §  360,  p.  558. 
payment  of  taxes,  §  360,  p.  559. 

liability  of  heirs,  legatees  or  devisees  for  debts,  §  361,  p.  560. 
measure  of  liability,  §  361,  p.  561. 

right  to  follow  assets  into  the  hands  of  third  parties,  §  361,  p.  562. 
when  action  accrues,  §  362,  p.  562. 
how  liability   determined,   §  362,  p.  563. 
*    recovery  of  contingent  claim  from  executor  or  administrator,  §  363, 

p.  564. 
liability  of  executor  or  aflministrator  when  no  notice  to  creditors 

given,  §  363,  p.  565. 
classification  of  claims  for  payment. 

funeral  expenses,  and  expenses  of  last  illness,   §  365,  p.  568. 

debts  having  preference  by  laws  of  the  United  States,  §  365,  p.  568. 

other  demands,  §  365,  p.  569. 

Oregon  classification,  §  365,  p.  570. 

interest  on  claims,  §  366,  p.  570. 

payment  when  estate  insolvent,  §  367,  p.  571. 

modification  of  order,  §  367,  p.  571. 

payments  out  of  order,  §  367,  p.  572. 

personal  liability  of  executor  or  administrator,   §  367,  p.  572. 

retention  of  money  to  pay  claim  appealed  to  a  higher  court,  §  367, 

p.  573. 

how  payment  made,  §  368,  p.  573. 
liability  of  representative,  §  369,  p.  574. 
how  payment  enforced,  §  369,  p.  574. 
notice  to  creditors  to  call  for  their  money,  §  369,  p.  575. 


INDEX.  1083 

DEBTS  OF  DECEDENT  (Continued). 

FOBMS. 

Application  for  extension  of  time  for  payment  of  debts,  No.  159, 

p.  549. 
Notice  of  application  to  extend  time  for  payment  of  debts,  No.  160, 

p.  550. 

Order  extending  time  for  payment  of  debts,  No.  161,  p.  550. 
Petition  to  recover  from  heirs,  received  from  administrator,  No.  162, 

p.  563. 
Petition  against  an  executor  or  administrator  on  a  contingent  claim, 

No.  163,  p.  566. 

Decree  for  payment  of  debts,  No.  164,  p.  572. 
Decree  for  further  distribution  to  creditors,  No.  165,  p.  573. 
Notice  to  creditors  to  demand  their  claims,  No.  166,  p.  575. 

DECLARATIONS  OF  DECEDENTS.     See,  also,  DEBTS  or  DECEDENTS — 
TRANSACTIONS  AND  CONVERSATIONS;  WITNESSES. 

by  testator  as  to  proposed  disposition  of  his  property,  §  96,  p.  147. 

by  devisee  or  legatee,  §  97,  p.  149. 

by  testator  as  to  revoking  will,  §  61,  p.  96. 

by  testator  as  to  revivor  of  wills,  §  69,  p.  103. 

as  to  marriage,  §§  150,  388e,  p.  224. 

declarations  against  interest,  §  295,  p.  457. 

gifts  causa  mortis,  §  382,  p.  593. 

in  regard  to  parentage  of  child,  §  437,  p.  729. 

DEEDS.     See,  also,  VENDORS  AND  VENDEES;  SALES;  POWEBS  or  SALE. 
delivery  of  by  representative,  5  251,  p.  388. 

decree  of  specific  performance  operating  as  a  deed,  §  257,  p.  402. 
of  executor  or  administrator  on  sale  for  payment  of  debts,  §  337, 

p.  525. 
of  guardian,   §  535,  p.  891. 

For  forms,  see  SALES;  VENDORS  AND  VENDEES. 

DESCENT  AND  DISTRIBUTION. 

descent  to  surviving  spouse,  §  429,  p.  712. 

nature  of   interest   of  surviving  spouse   in   decedent's   estate,   §  429, 

p.  713. 

descent  to  survivor — Oregon  statute,  §  429,  p.  714. 
barring  inheritances  by  antenuptial  contract,  §  430,  p.  714. 
barring  inheritances  by  conveyance  by  parties,  §  430,  p.  714. 


1084  INDEX. 

DESCENT  AND  DISTRIBUTION   (Continued). 

barring  inheritances  by  separation  agreement,  §  430,  p.  715. 
election  between  will  and  distributive  share,  §  431,  p.  717.     See,  also, 

ELECTION. 

descent  to  issue  or  descendants,  §  434,  p.  723. 
descent  of  estate  of  child  dying  under  age,  §  434,  p.  723. 
descent  to  collaterals,  §  434,  p.  723. 
descent  under  Oregon  statute,  §  434,  p.  724. 
next  of  kindred,  §  435,  p.  726. 
rule  as  to  descent  per  capita,  §  435,  p.  727. 
property  of  infant  not  inherited  from  parent,  §  435,  p.  727. 
kindred  of  the  half  blood,  §  436,  p.  728. 
descent  of  estate  of  an  illegitimate,  §  437,  p.  729. 
descent  of  estate  of  an  illegitimate — Oregon  statute,  §  437,  p.  729. 
inheritance  by  illegitimate  from  the  mother,  §  438,  p.  730. 
when  entitled  to  inherit  from  the  father,  §  438,  p.  730. 
inheritance  by  adopted  children,  §  439,  p.  732. 
inheritance  by  posthumous  children,  §  440,  p.  733. 
inheritance  by  pretermitted  children,  §  440,  p.  733. 
children  omitted  from  will — Oregon  statute,  §  440,  p.  735. 
limitation  on  inheritances  by  aliens,  §  442,  p.  737.     See,  also,  ALIENS. 
distribution  of  property  not  subject  to  disposal  by  will,  §  443,  p.  739. 
distribution  of  other  personal  estate,  §  443,  p.  739. 
selection  of  exempt  property,  §  443a,  p.  741. 
distribution  under  Oregon  statute,  §  443a,  p.  742. 
personalty  distributed  as  realty,  §  446,  p.  745. 
exceptions  to  the  right  to  inherit,  §  444,  p.  743. 
escheats,  §  445,  p.  743.     See,  also,  ESCHEATS. 
necessity  for  decree  of  distribution,  §  447,  p.  746. 
petition  for  distribution,  §  448,  p.  747. 
how  heirship  established,  §  449,  p.  748. 
indebtedness  of  heir,  §  449,  p.  749. 
decree  of  distribution,  §  450,  p.  750. 
special  proceedings  for  determining  succession  to  property,   §  450a, 

p.  750.     See,  also,  SPECIAL  PROCEEDINGS. 
the  decree  as  a  judgment,  §  451,  p.  755. 
advancements,  §  549,  p.  749.     See,  also,  ADVANCEMENTS. 
setting  aside  decree,  §  451,  p.  755. 

garnishment  of  representation,  §  451,  p.  756. 

FORMS. 
Petition  for  distribution  of  residue  of  the  estate,  No.  198,  p.  747. 


INDEX.  1085 

DESCENT  AND  DISTRIBUTION  (Continued). 
Decree  for  distribution,  No.  199,  p.  754. 
Petition  to  revoke  decree  of  distribution,  No.  200,  p.  757. 
Discharge  of  executor  or  administrator,  No.  201,  p.  759. 

DEVASTAVIT. 

defined,  §  234,  p.  351. 

acts  constituting,  §  235,  p.  352. 

sales  of  real  estate  when  deficiency  of  assets  caused  by,  §  320,  p.  498. 

how  considered  in  fixing  liability  of  bondsmen,  §  460,  p.  769. 

DEVISES.     See,     also,     ESTATES;     WILLS — PREPARATION;     DEVISEES; 

LEGATEES. 

possession  of  by  executor,  §  199,  p.  294. 
liability  for  debts,  §  355,  p.  552. 
direction  to  executor  to  pay  debts,  §  357,  p.  555. 
acceptance  of  devise  charged  with  payment  of  legacy,  §  370,  p.  576. 
adjustment  of  mortgage  liens,  §  360,  p.  558. 
devises  given  which  are  subject  to  mortgage,  §  360,  p.  558. 
order  in  which  lands  sold  for  payment  of  debts,  §  323,  p.  501. 
charges   when  legacies   given   generally  and   devises   after  payment, 

§371,  p.  577. 

charges  on  when  legacies  greatly  exceed  personalty,  §  371,  p.  578. 
charges  on  specific  devises,  §  371,  p.  578. 
lapsed  devises,  §  376,  p.  584. 

inheritance  tax  on  estates  for  years  and  remainders,  §  397,  p.  639. 
bond  to  secure  payment  of  tax  on  remainder,  §  405,  p.  664. 
payment  of  tax,  §  406,  p.  666. 

DEVISEES.     See,  also,  LEGACIES;  LEGATEES;  WILLS — PREPARATION. 
rights  in  regard  to  probate  of  will,  §  79,  p.  119. 
rule  in  regard  to  possession  of  devise,  §  200,  p.  296. 
contribution  by  for  payment  of  debts,  §  228,  p.  338. 
liability  for  share  of  insolvent,  §  228,  p.  339. 
when  and  where  action  brought,  §  228,  pp.  339,  392. 
liability  on  contingent  claims,  §  361,  p.  560. 
liability  on  property  charged  with  debts,  §  361,  p.  560. 
action  against  to  recover  claim,  §  362,  p.  562. 
contribution  between  devisees,  §  3€2,  p.  563. 
liability  for  payment  of  inheritance  tax,  §  406,  p.  665. 
appeals  by  from  orders  allowing  claims,  §  478,  p.  797. 
liability  for  debts  of  the  estate,  §  228b,  p.  344. 


1086  INDEX. 

DEVISEES  (Continued). 

FORMS. 
Petition    for    payment    of   legacy    pending    administration,    No.    98, 

p.  337. 

Bond  of  heir  or  legatee  on  receipt  of  share,  No.  99,  p.   337. 
Petition  for  legatee  of  devisee  to  pay  share  of  insolvent,  No.   100, 

p.  339. 

Notice  to  devisee  or  legatee,  No.  101,  p.  341. 
Order  requiring  legatee  or  devisee  to  contribute  to  payment  of  debts 

and  expenses,  No.  102,  p.  341. 

DISPENSING  WITH  ADMINISTRATION. 

rights  of  heirs  to  divide  personal  property,  §  132,  p.  202. 

estates  which  need  not  be  administered,  §  132,  p.  203. 

proceedings  for  dispensing  with  administration,   §  133,  p.  204. 

hearing,  decree,  §  134,  p.  205. 

jurisdiction   of   county   court   to   determine   heirship   to   real   estate 

where  no  administration  has  been  had,  Appendix,  p.  964. 
petition  for  determining  heirship,  Appendix,  p.  964. 
citation,  hearing,  Appendix,  p.  965. 
effect  of  decree,  Appendix,  p.  965. 

FORMS. 

Petition  for  order  dispensing  with  administration,  No.  53,  p.  204. 
Order  for  hearing,  No.  54,  p.  205. 

Order  dispensing  with  administration,  No.  55,  p.  206. 
Petition  for  decree — Determining  succession,  No.  56,  p.  208. 

DOWEB. 

defined,  §  3S8a,  p.  599. 

vesting  of  dower  interest,  §  388a,  p.  600. 

dower  in  lands  exchanged,  §  388a,  p.  600. 

in  lands  mortgaged  before  marriage,   §  388b,  p.  601. 

in  lands  mortgaged  after  marriage,  §  388b,  p.  601. 

in  surplus  from  mortgage  foreclosure,  §  388b,  p.  602. 

aliens  and  nonresidents,  §  388c,  p.  602. 

property  to  which  dower  attaches — general  rule,  §  388d,  p.  603. 

in  lands  sold  on  execution  against  the  husband,  §  388d,  p.  604. 

in  lands  conveyed  to  defraud  creditors,  §  388d,  p.  605. 

requisites  of  dower,  §  388e,  p.  605. 

barring  dower  by  deed,  §  388f,  p.  606. 


INDEX.  1087 

DOWER   (Continued). 

jointure,  §  388f,  p.  607. 

antenuptial  contract,  §  388f,  p.  607. 
conveyances  taking  effect  after  death,  §  388f,  p.  607. 
contracts  and  agreements  between  husband  and  wife,  §  388f,  p.  608. 
election,  §  388g,  p.  609. 

assignment  by  contract  between  widow  and  heirs,  §  388h,  p.  610. 
jurisdiction  of  county  court  to  assign  dower,  §  388i,  p.  611. 
appointment  and  duties  of  commissioners,  §  3S8i,  p.  612. 
assignment  of  dower  by  circuit  court,  §  388j,  p.  614. 
dower  in  lands  that  have  enhanced  in  value,  §  388k,  p.  615. 
dower  in  lands  that  have  depreciated  in  value,  §  3881,  p.  616. 
dower  in  property  not  capable  of  division,  §  3"88m,  p.  616. 
damages  for  withholding  dower,  §  388n,  p.  621. 
incidents  of  dower,  §  388o,  p.  621. 
liability  for  waste,  §  388o,  p.  622. 
dower  recovered  by  default  or  collusion,  §  388p,  p.  622. 

FORMS. 

Jointure  barring  dower,  No.  166a,  p.  608. 
Petition  for  assignment  of  dower  by  widow — County  court,  No.  166b, 

p.  612. 
Notice  of  pendency  of  petition  for  dower — County  court,  No.  166c, 

p.  613. 

Answer  setting  up  defense  to    dower,  No.  166c,  p.  613. 
Petition  for  assignment  of  dower — Circuit  court,  No.  166d,  p.  616. 
Petition  by  heir  for  assignment  of  dower,  No.  166e,  p.  617. 
Decree  for  dower — County  court,  No.  166f,  p.  618. 
Warrant  to  commissioners,  No.  166g,  p.  619. 
Oath  of  commissioners  to  set  off  dower,  No.  166h,  p.  619. 
Report  of  commissioners  on  assignment  of  dower,  No.  188i,  p.  620. 
Order  confirming  assignment  of  dower,  No.  166j,  p.  620. 


E 

EJECTMENT. 

by  executor  or  administrator,  §  199,  p.  295. 
by  heir  or  devisee,  §  200,  p.  296. 

ELECTION.     See,  also,  DESCENT  AND  DISTRIBUTION;  DOWEB. 
between  dower  and  provisions  of  will,  §  388g,  p.  609. 
between  will  and  distributive  share,  §  431,  p.  717. 


1088  INDEX. 

ELECTION  (Continued). 

when  and  how  made,  §  431,  p.  718. 

right  of  widow  to  revoke  her  election,  §  431,  p.  718. 

for  incompetent  widow,   §  432,  p.  720. 

effect  of  election,  §  433,  p.  722. 

making  up  statutory  share,  §  433,  p.  722. 

FORMS. 

Election  to  take  under  the  statute,  No.  191,  p.  719. 
Petition  by  guardian  of  incompetent  widow  for  authority  to  elect, 

No.  192,  p.  720. 
Order   directing  guardian  of   incompetent   widow  to   take  statutory 

share,  No.  193,  p.  721. 

EMBLEMENTS. 

inventory  and  appraisement  of,  §  175,  p.  260. 

ENFORCEMENT  OF  REAL  ESTATE  CONTRACTS.     See  VENDOR  AND 
VENDEES. 

EQUITY.     See  ACTIONS. 

ESCHEATS. 

escheating  of  lands  of  alien  heirs  or  devisees,  §  442,  p.  737. 
escheating  on  account  of  failure  of  heirs,  §  445,  p.  743. 
administration  of  escheated  estates,  §  445,  p.  744. 
action  to  declare  property  escheated,  §  445,  p.  744. 
sale  of  escheated  property,  §  445,  p.  745. 
recovery  of  proceeds  by  heir,  §  445,  p.  745. 

ESTATES. 

estates  in  fee,  §  29,  p.  42. 
determinable  fee,  §  31,  p.  44. 
life  estate,  §  32,  p.  45. 
remainder,  §  33,  p.  46. 
executory  devises,  §  33,  p.  46. 
estates  upon  conditions,  §  34,  p.  47. 
spendthrift  trusts,  §  35,  p.  49. 
eonstructive  trusts,  §  35,  p.  49. 
rule  in  Shelley's  Case,  §  28,  p.  41. 


IXDEX.  1089 

EXECUTORS.     See,  also,  EXECUTORS  AND  ADMINISTRATORS. 
definitions,  §  122,  p.  184. 

appointment  when  not  designated  in  the  will,  §  122,  p.  184. 
persons  competent  to  act,  §  123,  p.  185. 
rule  in  regard  to  nonresidents,  §  123,  p.  186. 
right  not  assignable,  §  124,  p.  187. 
bond,  §  126,  p.  188. 
dispensing  with  bond,  §  126,  p.  189. 
competent  sureties,  §  126,  p.  190. 
•when  penalty  of  bond  may  be  reduced,  §  126,  p.  192. 
bond  of  residuary  legatee,  §  128,  p.  193. 
residuary  legatee  bond  cannot  be  withdrawn,  §  128,  p.  195. 
administrator   with   the  will  annexed,   §  129,  p.  197.     See  ADMINIS- 
TRATOR WITH  THE  WILL  ANNEXED. 

FORMS. 

Eenuneiation  of  executor,  No.  44,  p.  187. 
Retraction  of  renunciation,  No.  45,  p.  187. 
Bond  of  executor,  No.  46,  p.  190. 
Undertaking  of  executor,  No.  46a,  p.  191. 

Application  for  reduction  of  penalty  of  bond,  No.  46b,  p.  192. 
Oath  of  executor,  No.  46c,  p.  193. 
Bond  of  residuary  legatee,  No.  47,  p.  195. 
Letters  testamentary,  No.  48,  p.  196. 
Letters  testamentary — Oregon,  No.  48a,  p.  197. 

EXECUTOR  DE  SON  TORT. 

defined,  §  195,  p.  287. 
liabilities,  §  195,  p.  288. 
action  against,  §  195,  p.  288. 

EXECUTORS  AND  ADMINISTRATORS.     See,  also,  FOREIGN  EXECU- 
TORS AND  ADMINISTRATORS. 
liabilities.     See,  also,  ACCOUNTING. 

compromise  of  debts  without  leave  of  court,  §  208,  p.  307. 
liability  on  his  own  contract  concerning  the  estate,  §  230,  p.  347. 
rule  when  executor  is  a  nonresident,  §  230,  p.  348. 
liability  on  notes   taken  in  settlement  of  claims,   §  236,  p.  353. 
liability  on  indorsements  of  negotiable  instruments,  §  236,  p.  354. 
notes  of  representative  not  a  charge  on  the  estate,  §  236,  p.  354. 
when  liable  for  default  of  corepresentative,  §  426,  p.  708. 
69 — Pro.  Ad. 


1090  INDEX. 

EXECUTOES  AND  ADMINISTRATORS   (Continued), 
powers  and  duties.     See  ACTIONS;  ASSETS,  and  other  separate  heads, 
removal. 

resignation,  §  144,  p.  232. 

notice  of  intention  to  resign,  §  155,  p.  233. 

removal  by  revocation  of  letters,  §  156,  p.  234. 

statutory  causes  for  removal,  §  157,  p.  234. 

for  nonresidence,  §  158,  p.  235. 

for  failure  to  observe  statutes,  §  159,  p.  235. 

culpable  management,  §  160,  p.  236. 

errors  of  judgment,  §  160,  p.  238. 

incapability  and  unsuitableness,  §  161,  p.  238. 

subsequent  probate  of  will,  §  162,  p.  239. 

marriage  of  executrix  or  administratrix,  §  163,  p.  239. 

insufficiency  of  bond,  §  164,  p.  240. 

petition  for  removal,  §  165,  p.  242. 

notice  and  service,  §  166,  p.  243. 

hearing,   §  167,  p.  245. 

order  of  removal,  §  168,  p.  249. 

effect  of  appeal,  §  168,  p.  250. 

FORMS. 

Petition  to  remove  executor  or  administrator,  No.  63,  p.  244. 
Order  to  personal  representative  to  show  cause  why  he  should  not 

be  removed,  No.  64,  p.  246. 

Order  removing  personal  representative,  No.  65,  p.  246. 
Application  for  additional  security  on  executors'  or  administrators' 

bond,  No.  66,  p.  246. 
Order  to  show  cause  why  new  bond  should  not  be  given,  No.  67, 

p.  247. 
Order  removing  executor  or  administrator  for  failure  to  strengthen 

bond,  No.  69,  p.  248. 

Order  requiring  new  bond,  No.  68,  p.  247. 
Order  to   former  executor  or  administrator  to   render  an  account, 

No.  70,  p.  249. 

P 

FATHER. 

right  to  disinherit  child,  §  90,  p.  138. 
descent  of  property  to,  §  434,  p.  723. 
rights  as  natural  guardian,  §  491,  p.  820. 
right  to  letters  of  guardianship,  §  495,  p.  825. 


INDEX.  1091 

FATHER  (Continued). 

right  to  custody  of  child,  §  511,  p.  854. 
duty  to  support  minor  child,  §  512,  p.  855. 
consent  to  adoption,  §  566,  p.  935. 
abandonment  of  child,  §  569,  p.  944. 

FEES. 

of  executors  and  administrators. 

statutory  commissions,  §  420,  p.  692. 

for  special  services,  §  421,  p.  695. 

proof  of  special  services,  §  424,  p.  704. 

under  Oregon  practice,  §  420,  p.  693. 

forfeiture  of  fees,  §  421,  p.  696. 

of  county  court,  Appendix,  p.  963. 

of  clerk  of  county  court,   §  23,  p.  33. 

of  sheriff  or  constable,  §  21,  p.  32. 

of  printer,  §  22,  p.  32. 

of  appraisers,  §  23,  p.  33. 

of  witnesses,  §  23,  p.  33. 

of  special  administrator,  §  120,  p.  180. 

of  special  administrator  for  adjustment  of  partnership,  §  242,  p.  368. 

of  special  administrator  for  mortgaging  real  estate,  §  250,  p.  385. 

of  guardian,  §  552,  p.  512. 

guardian  ad  litem,  §  16,  p.  25. 

of  inheritance  tax  appraisers,  §  33,  p.  23. 

of  inheritance  tax  appraisers — Oregon,  §  408,  p.  669. 

FIXTURES. 

inventory  of,  §  176,  p.  260. 
trade  fixtures,  §  176,  p.  261. 

FOREIGN  EXECUTORS  AND  ADMINISTRATORS.  See,  also,  AN- 
CILLARY ADMINISTRATORS. 

rights  of  at  common  law,  §  259,  p.  403. 

powers  to  collect  assets  and  commence  and  prosecute  suits,  §  260, 
p.  404. 

limitations  on  powers,  §  261,  p.  405. 

home  representative  in  foreign  states,  §  262,  p.  406. 

sales  of  real  estate  by,  §  335,  p.  524. 

FOREIGN  GUARDIANS. 

powers  of  in  this  state,  §  524,  p.  872. 
sales  of  real  estate  by,  §  526,  p.  8C1. 


1092  INDEX. 

FRAUDULENT  CONVEYANCES. 

survivor  of  causes  of  action  for,  §  201,  p.  297. 

power  of  representative  to  bring  suit  to  set  aside  conveyances  of  his 

decedent,  §  212,  p.  309. 
theory  of  the  action,  §  212,  p.  313. 
when  action  may  be  brought,  §  212,  p.  313. 
•what  constitutes  a  fraudulent  transfer,  §  215,  p.  318. 

indemnity  bond,  §  214,  p.  315. 

preliminary  proceedings — Oregon  practice,  §  212,  p.  311. 
notice  of  application,  §  212,  p.  311. 

FORMS. 
Petition  for  order  to  bring  action  to  set  aside  fraudulent  conveyance 

of  decedent,  No.  92a,  p.  311. 

Order  authorizing  suit  to  set  aside  conveyances,  No.  62b,  p.  313. 
Petition  for  order  requiring  executor  or  administrator  to  bring  suit 

to  set  aside  fraudulent  transfer,  No.  94,  p.  316. 
Bond  to  secure  costs  and  expenses  of  suit  to  set  aside  fraudulent 

conveyance  made  by  decedent,  No.  95,  p.  317. 

FUNERAL  EXPENSES. 

rule  in  regard  to  filing,  §  284,  p.  444. 

payment  by  executor  de  son  tort,  §  195,  p.  288. 

proper  items  of,  §  285,  p.  445. 

duty  of  court  to  disallow  when  exorbitant,  §  235,  p.  445. 


a 

GARNISHMENT. 

when  writ  of  lies  against  representative,  §  364,  p.  567. 

GIFTS  CAUSA  MORTIS, 
definition,  §  379,  p.  588. 
what  constitutes  delivery,  §  379,  p.  589. 
acceptance  of  gift,  §  379,  p.  590. 
property  subject  to  gift,  §  380,  p.  590. 
effect  of  gift,  §  381,  p.  591. 
recovery  when  estate  insolvent,   §  381,  p.  592. 
how  validity  of  gift  determined,  §  382,  p.  592. 
conversations  of  donee  with  donor,  §  382,  p.  592. 
declarations  of  donor,  §  382,  p.  593. 


INDEX.  1093 

GUARDIANS. 

accounts.     See  ACCOUNTING. 
definitions,  §  490,  p.  819. 

powers  and  duties  of  natural  guardians,  §  491,  p.  820. 
limitation  of  powers,  §  491,  p.  821. 
testamentary  guardians,  §  492,  p.  822. 
general  rule  as  to  powers  of,  §  492,  p.  822. 
appointment — minors. 

jurisdiction  of  county  court  over,    §  493,   p.  823. 

jurisdiction  of  county  court,  children  of  criminal  or  vicious  parents, 

§494,  p.  824. 

right  of  minor  to  nominate  his  guardian,  §  495,  p.  824. 
right  of  parent  to  letters,  §  495,  p.  825. 
nonresidents,  §  495,  p.  826. 
corporations,  §  495,  p.  826. 
petition  for  letters,  §  496,  p.  827. 
when  notice  of  hearing  required,   §  497,  p.  830. 
hearing,  §  497,  p.  831. 

FORMS. 

Nomination  of  guardian.  No.  217,  p.  828. 
Petition  for  appointment  of  guardian    under     fourteen,     No.     218, 

p.  825. 
Petition  for  appointment  of   other     person     while     parent     living, 

No.  219,  p.  829. 
Petition  by  minor  over  fourteen  years  for  appointment  of  guardian, 

No.  220,  p.  830. 

Order  for  appointment  of  guardian  of  a  minor,  No.  221,  p.  831. 
Guardian's  bond,  No.  228,  p.  841. 
Oath  of  guardian,  No.  229,  p.  842. 
Letters  of  guardianship,  No.  230,  p.  842. 
appointment — incompetent  persons, 
when  letters  may  issue,  §  498,  p.  832. 
temporary  guardian,  §  499,  p.  834. 
notice  to  alleged  incompetent,  §  500,  p.  834. 
hearing,   §  500,  p.  835. 
rule  as  to  what  incompetency  sufficient  to  authorize  appointment  of 

guardian,  §  500,  p.  835. 

FORMS. 
Petition  for  appointment  of  a  guardian  of  an  insane  or  incompetent 

person,  No.  222,  p.  832. 


1094  INDEX. 

GUARDIANS  (Continued). 

Order  fixing  date  for  hearing,  No.  22/3,  p.  833. 

Notice  of  hearing  on  petition  for  appointment  of  guardian,  No.  224. 

p.  833. 
Order  for  appointment  of  guardian,  No.  225,  p.  836. 

appointment — nonresidents. 

when  appointment  may  be  made,  §  506,  p.  844. 

to  whom  letters  may  issue,  §  506,  p.  844. 
appointment — spendthrifts. 

when  appointment  proper,  §  501,  p.  836. 

proceedings  for  letters,  §  501,  p.  837. 

contracts  of  alleged  spendthrift  pending  application,  §  502,  p.  838. 

FORMS. 

Complaint  for  spendthrift,  No.  226,  p.  837. 
Order  for  appointment  of  guardian  of  spendthrift,  No.  227,  p.  838. 

appeals  from  order  for  appointment  of  guardian  of  a  minor,  §  503, 
p.  839. 

appeal  from  order  for  appointment  of  guardian  of  incompetent  per- 
son, §  503,  p.  839. 

joint  guardians,  §  505,  p.  843. 

bond  of  guardians,  §  504,  p.  839. 

bond  of  testamentary  guardian,  §  504,  p.  840. 

discharge  of  guardian. 

ending  of  minority  of  ward,  §  554,  p.  915. 

removal  of  disability  of  ward,  §  554,  p.  915. 

application  by  ward  for  discharge  of  his  guardian,  §  554,  p.  916. 

duties. 

inventory  and  appraisement,  §  510,  p.  852. 

custody  of  incompetent  or  spendthrift  ward,  §  511,  p.  853. 

custody  of  minor,  §  511,  p.  853. 

determining  right  of  custody  of  minor,  §  511,  p.  854. 

support  of  minor  when  father  living,  §  512,  p.  855. 

when  entitled  to  support  from  his  estate,  §  512,  p.  855. 

proceedings  for  obtaining  allowance  for  support,  §  512,  p.  856. 

support  of  incompetent  or  spendthrift,  §  513,  p.  857. 

labor  and  services  of  ward,  §  514,  p.  858. 

possession  of  ward's  estate,  §  515,  p.  859. 

compromise  of  debts  due  ward,  §  515,  p.  860. 


INDEX.  1095 

GUARDIANS  (Continued). 

special  proceedings  to  recover  assets,  §  515,  p.  860. 

defense  of  actions  against  ward,  §  516,  p.  861. 

payment  of  debts,  §  518,  p.  862. 

management  of  real  estate,  §519,  p.  863. 

execution  of  leases,   §  519,  p.  864. 

redemption  of  mortgaged  property,  §  519,  p.  865. 

investments  of  personal  property,  §  520,  p.    865.     See,  also,  INVEST- 
MENTS— BT  GUARDIANS. 

right  to  bring  partition,  §  519,  p.  865. 

accounting.     See  ACCOUNTING — GUAEDIANS. 
irregular  and  fraudulent  transactions  of  guardian. 

remedies  of  former  ward,  §  557,  p.    919. 

transfers  to  third  parties,  §  557,  p.  919. 

ratification  of  irregular  transactions,  §  557,  p.  920. 
liabilities.     See,  also,  ACCOUNTING — BY  GUARDIANS. 

personal  indebtedness  to  ward,  §  510,  p.  853. 

contracts  for  education  and  maintenance  of  ward,  §  517,  p.  862. 

unauthorized  sales,  §  520,  p.  867. 

unauthorized  investments,  §  521,  p.  868. 

negligence,  §  522,  p.  870. 

ill-treatment  of  ward,  §  523,  p.  870. 

FORMS. 

Information  against  guardian  for  neglect  or  abuse  of  ward,  No.  236, 
p.  871. 

removal. 

resignation,  §  507,  p.  845. 

incapability,  §  507,  p.  845. 

unsuitableness,  §  507,  p.  845. 

proceedings  for  removal,  §  508,  p.  847. 

appointment  of  predecessor,  §  509,  p.  850. 

authority  of  new  guardian,  §  509,  p.  850. 

transfer  of  guardianship  to  another  county,  §  509a,  p.  851. 

FORMS. 

Petition  for  removal  of  guardian,  No.  231,  p.    846. 
Notice   of   hearing   on   petition  for  removal   of   guardian,  No.   232, 
p.  848. 


1096  INDEX. 

GUARDIANS  (Continued). 

Order  removing  guardian  for  neglect  or  abuse  of  ward,  No.   233, 

p.  848. 
Order  removing  guardian,  No.  234,  p.  849. 

settlement  between  guardian  and  former  ward. 

right  of  parties  to  settle  out  of  court,  §  555,  p.  916. 

action  to  set  aside  settlement,  §  556,  p.  917. 

sales  to  guardian,  §  556,  p.  918. 

gifts  to  guardian,  §  556,  p.  918. 

revivor  of  liability  of  bondsmen  when  settlement  set  aside,   §  556, 

p.  919. 
sales  of  real  estate.     See  SALES — BY  GUARDIANS. 


HEIRS.    See,  also,  DESCENT  AND  DISTRIBUTION;  DEVISEES;  LEGATEES. 

definition,  §  38,  p.  55. 

surviving  spouse,  §  429,  p.  713. 

liability  for  assets  in  their  possession,  §  194,  p.  281. 

right  to  possession  of  assets  pending  administration,  §  227,  p.  335. 

liability  for  assets  delivered  by  representative  pending  administra- 
tion, §  227,  p.  335. 

proceedings  for  procuring  delivery  of  personalty,  §  227,  p.  336. 

contribution  by  heir  for  payment  of  debts  or  share  of  child,  §  228, 
p.  338. 

action  against  to  recover  personalty,  §  228a,  p.  342. 

measure  of  liability,  §  228b,  p.  344. 

debts  for  which  a  liability  exists,  §  22-8b,  p.  344. 

the  judgment,  §  228b,  p.  345. 

liability  for  contingent  claims,  §  361,  p.  560. 

FORMS. 
Bond  of  heir  or  legatee  on  receipt  of  his  share  of  the  estate,  No.  99, 

p.  337. 

Petition  for  recovery  from  heirs  of  money  paid  them  pending  admin- 
istration, No.  162,  p.  563.     See,  also,  Forms  Nos.  100,  101  and  102, 
under  DEVISEES. 
Recovery  of  share  from  bondsmen  of  representative.     See  BONDS — 

PROBATE — ACTIONS. 

Appeals  from  decisions  adverse  to  the  estate,  §  478,  p.  797. 
Special  proceedings  for  determining  heirship,  §  450a,  p.  750.     See, 

also,  SPECIAL  PROCEEDINGS. 


INDEX.  1097 

HOMESTEAD. 

right  of  succession  to,  §  389,  p.  623. 
definition,  §  389,  pp.  623,  624. 
area  and  value,  §  389,  p.  625. 
succession  to  homestead  exemption,  §  389,  p.  625. 
barring  homestead  right  by  abandonment,  §  390,  p.  625. 
barring  homestead  right  by  contract  or  conveyance,  §  390,  p.  626. 
rights  of  surviving  spouse  in  homestead,  §  391,  p.  626. 
abandonment  after  death  of  the  holder  of  the  fee,  §  391,  p.  627. 
liens  and  encumbrances,  §  391,  p.  628. 
right  to  continue  in  possession,  §  391,  p.  628. 
right  to  possession — Oregon,  §  391,  p.  628. 
assignment  of. 

jurisdiction  of  county  court  over,  §  392,  p.  629. 

petition  and  notice,  §  392,  p.  630. 

setting  out  homestead  from  larger  tract,  §  393,  p.  631. 

setting  out  homestead — Oregon  practice,  §  393,  p.  634. 

jurisdiction  of  district  court  to  assign  homestead,  §  394,  p.  635. 

descent  of  the  remainder,  §  395,  p.  636. 

FORMS. 

Petition  for  assignment  of  homestead,  No.  167,  p.  630. 
Order  assigning  homestead,  No.  168,  p.  631. 
Order  for  assignment  of  homestead  and  appointment  of  appraisers, 

No.  169,  p.  632. 

Report  of  appraisers,  No.  170,  p.  633. 
Order  confirming  report  and  assigning  homestead  exemption,  No.  171, 

p.  633. 

HUSBAND. 

right  to  administer  estate  of  wife,  §  142,  p.  215. 
presumption  as  to  ownership  of  personalty  by,  §  178,  p.  263. 
rule  as  to  liability  of  wife's  funeral  expenses,  §  285,  p.  446. 
nature  of  interest  in  wife's  estate,  §  429,  p.  713. 


I 
ILLEGITIMATE  CHILDREN.     See  CHILDREN. 

INFANT. 

not  capable  of  making  a  will,  §  49,  p.  82. 
appointment  of  as  executor,  §  123,  p.  185. 


1098  INDEX. 

INFANT    (Continued). 

administration  during  minority,  §  123,  p.  186. 

allowances  for  support  of,  §  187,  p.  275. 

right  to  his  wages,  §  514,  p.  858. 

defense  of  suit  against  by  guardian  or  guardian  ad  litem,   §  516, 

p.  861. 

liability  for  torts,  §  516,  p.  861. 
adoption  of.     See  ADOPTION. 

INHERITANCE  TAX. 

definition,  §  396,  p.  637. 

tax  on  gifts  and  inheritances  to  descendants  and  relatives,   §  397, 

p.  638. 

share  of  surviving  spouse,  §  397,  p.  638. 
collateral  heirs,  §  397,  p.  639. 

gifts  to  persons  not  relatives  and  to  corporations,  §  397,  p.  639. 
rates  of  tax  in  Oregon,  §  397,  p.  640. 
estates  for  years  and  remainders,  §  397,  p.  640. 
property  transferred  in  contemplation  of  death,  §  398,  p.  641. 
meaning  of  term  "contemplation  of  death,"  §  398,  p.  641. 
tax  on   property   transferred   by   deposit  or  trust  company,    §  398, 

p.  642. 

real  estate  or  interests  therein,  §  399,  p.  643. 
personal  property,  §  399,  p.  643. 
corporate  stocks  and  bonds,   §  399,  p.  644. 
situs  of  personal  property,  §  399,  p.  644. 
property  in  other  states,  §  399,  p.  645. 

jurisdiction  of  county  court  over  inheritance  tax,  §  400,  p.  645. 
duty  of  executor  or  administrator  to  give  notice  to  county  treasurer 

of  property  liable  for  tax,  §  400,  p.  646. 
duty  of  county  treasurer,  §  400,  p.  646. 
duty  of  county  attorney,"  §  400,  p.  646. 
notice  to  state  treasurer  when  property  appears  subject  to  taxation, 

§  400,  p.  647. 

appointment  of  appraisers,  §  401,  p.  647. 
general  powers  of  appraiser,   §  401,  p.  648. 
power  of  court  to  appoint  appraiser,  §  401,  p.  649. 
notice  to  parties,  §  401,  p.  649. 
fees  of  appraisers,  §  401,  p.  649. 

general  rule  for  valuation  of  property,  §  402,  p.  650. 
corporate  stocks,  §  402,  p.  650. 
life  estates,  §  402,  p.  €51. 


INDEX.  1099 

INHERITANCE  TAX   (Continued), 
life  estates — Oregon,  §  402,  p.  651. 

report  of  appraisement  to  state  treasurer,  §  402,  p.  656. 
objections  to  report,  §  402,  p.  656. 
assessment  of  tax  by  county  court,  §  403,  p.  657. 
assessment  of  tax  by  county  court,  Appendix,  p.  966. 
apportionment  of  costs  of  appraisement,  §  403,  p.  660. 
liability  of  appraiser  for  taking  any  fee  or  reward,  §  402,  p.  656. 
appeals  from  order  assessing  tax,  §  404,  p.  661. 
appeals  under  Oregon  practice,  §  404,  p.  663. 
•when  tax  due,  §  405,  p.  663. 

payment  by  remainderman  or  giving  security  for  same,  §  405,  p.  664. 
payment  by  executor,  administrator  or  trustee,  §  406,  p.  665. 
payment  of  tax — Oregon  statutes,  §  406,  p.  666. 
to  whom  payable,  §  406,  p.  667. 
payment  by  foreign    representative    on    transfers    of    stock,    §  406, 

p.  667. 

receipt  for  tax,  §  406,  p.  667. 
refunding  of  erroneous  payments,  §  407,  p.  668. 
action  for  recovery  of  tax,  §  408,  p.  669. 
proceedings  under  Oregon  practice,  §  408,  p.  669. 
inheritance  tax  records,  §  409,  p.  669. 
inheritance  tax  records — Oregon,  §  408,  p.  671. 

FORMS. 

Appointment  of  inheritance  tax  appraiser,  No.  172,  p.    648. 
Eeport  of  appraiser,  No.  173,  p.  652. 
Keport  of  appraiser — Remainders,  charges  and  life  estates,  No.  174, 

p.  654. 

Order  assessing  inheritance  tax,  No.  175,  p.   €58. 
Order  assessing  inheritance  tax,  remainders,  charges  and  life  estates, 

No.  176,  p.  659. 

Bond  on  appeal  from  assessment  of  tax,  No.  177,  p.  662. 
Bond  of  remainderman    to    secure    payment     of    inheritance    tax, 

No.  178,  p.  664. 
Petition  by  county  attorney  for  recovery  of  delinquent  inheritance 

tax,  No.  179,  p.  670. 

INSANITY. 

definition,  §  53,  p.  87. 

insane  delusions,  §  54,  p.  88. 

lucid  intervals,  §  55,  p.  90. 

as  ground  for  appointment  of  guardian,  §  498,  p.  832. 


1100  INDEX. 

INSOLVENT  ESTATES. 

limitation  on  allowances  for  support  from,  §  190,  p.  279. 

preferred  debts,  §  365,  p.  568. 

determining  priority  of  claims,   §  367,  p.  571. 

assets  not  liable  for  debts,  §  359,  p.  556. 

gifts  causa  mortis,  §  381,  p.  592. 

advancements,  §  388,  p.  597. 

INVENTORY. 

first  duty  of  representative,  §  172,  p.  256. 

description  of  items,  §  172,  p.  257. 

items  of  personalty,  §  173,  p.  258. 

shares  or  interests  in  business,  §  174,  p.  259. 

indebtedness  of  representative  or  beneficiary,  §  174,  p.  259. 

emblements,  §  175,  p.  260. 

fixtures,  §  176,  p.  260. 

property  not  reduced  to  possession,  §  177,  p.  261. 

property  the  title  to  which  is  questioned,  §  178,  p.  262. 

property  in  possession  of  wife,  §  178,  p.  263. 

real  estate  and  interests  therein,  §  179,  p.  263. 

assets  which  need  not  be  inventoried,  §  180,  p.  264. 

proceedings  to  compel  filing,  §  181,  p.  267.    ' 

appraisement,  §  182,  p.  268.     See,  also,  APPRAISERS. 

inventory  of  administrator  de  bonis  non,  §  184,  p.  272. 

inventory  not  conclusive,  §  185,  p.  272. 

FORMS. 

Inventory  and  appraisement,  No.  75,  p.  265. 

Petition  to  compel  an  executor  or  administrator  to  return  an  inven- 
tory, No.  76,  p.  266. 

Citation  to  administrator  to  return  inventory,  No.  77,  p.  267.  See, 
also,  forms  under  APPRAISERS. 

INVESTMENTS  BY  EXECUTORS  AND  ADMINISTRATORS, 
general  rule  as  to  duty  of  representative,  §  229,  p.  345. 
what  are  proper  investments,  §  229,  p.  346. 
deposit  of  securities  with  trust  company,  §  126,  p.  192-. 

INVESTMENTS  BY  GUARDIANS. 

general  duty  of  guardian,  §  520,  p.  865. 
power  of  court  to  authorize,  §  520,  p.  866. 


INDEX.  1101 

INVESTMENTS  BY  GUARDIANS    (Continued). 

liability  on  investments  made  without  order  of  court,  §  520,  p.  867. 
liability  on  order  to  invest  in  his  discretion,  §  521,  p.  868. 
what  are  proper  investments,  §  521,  p.  869. 

FORMS. 
Application  to  sell  personalty  and  reinvest  same,  No.  235,  p.  868. 

ISSUE. 

definition,  §  38,  p.  54. 

J 

JOINTURE. 

as  a  bar  to  dower,  §  388f,  p.  607. 

JUDGES. 

of  county  court, 
election,  §  1,  p.  3. 
qualification,  §  1,  p.  3. 
bond  and  oath,  §  2,  p.  4. 
liability  of  sureties  on  bond,  §  3,  p.  5. 
vacancies,  §  4,  p.  7. 
impeachment,  §  4,  p.  8. 
filling  vacancies,  §  5,  p.  8. 
disqualification  of  judge,  §  6,  p.  9. 
effect  of  disqualification,  §  7.  p.  10. 
appointment  of  acting  county  judge,  §  8,  p.  12. 
appointment  of  acting  county  judge,  Appendix,  p.  964. 
jurisdiction  of  circuit  judge  in  county  court  cases,  §  8,  p.  13. 
fees  and  salaries,  §  20,  p.  30. 

FORMS. 

Oath  of  county  judge,  No.  1,  p.  5. 
Bond  of  county  judge,  No.  2,  p.  6. 
Justification  of  surety,  No.  3,  p.  7. 

Objections  to  county  judge  on  account  of  relationship,  No.  4,  p.  10. 
Verification,  No.  5,  p.  10. 
Objections  to  county  judge  on  account  of  bias  and  prejudice,  No.  6, 

p.  11. 
Request    for    appointment    of    acting    county    judge — Special    case, 

No.  7,  p.  12. 


1102  INDEX. 

JUDGES  (Continued). 

Eequest    for    appointment    of    acting    county    judge — Disability   of 
judge,  No.  8,  p.  12. 

of  district  court. 

jurisdiction  over  real  estate  contracts,  §  252,  p.  389. 
jurisdiction  over  sales    of    real    estate    by    executors    and    adminis- 
trators, §  311,  p.  480. 
sales  of  real  estate  by  guardians,  §  526,  p.  874. 

JUDGMENTS. 

against  personal  representative  on  claim  against  the  estate,  §  273d, 

p.  427. 

action  pending  at  time  of  death  of  decedent,  §  276,  p.  431. 
entered  before  death  of  decedent,  §  276,  p.  431. 
proof  of  foreign  judgment,  §  283,  p.  442. 
against   devisee,  legatee  or  heirs  for  value  of  assets  of  estate  in 

their  possession,  §  362,  p.  563. 
against   executor  or   administrator   for   failure   to   retain   sufficient 

assets,  §  363,  p.  564. 
against  next  of  kin  for  value  of  assets  received  by  them,  §  228a, 

p.  343. 
enforcement  of  against  heirs  or  devisee,  §  228b,  p.  344. 


L 

LAST  SICKNESS. 

definition  of  in  reference  to  nuncupative  wills,  §  47,  p.  78. 
classification  of  debts,  §  365,  p.  568. 

LEGACIES. 

primary  charge  on  personalty,  §  370,  p.  576. 

when  payable  before  administration  completed,   §  227,  p.  335. 

right  to  compel  refund  of,  §  227,  p.  336. 

proceedings  to  obtain  payment  pending  administration,  §  227,  p.  336. 

legacies  charged  on  rtal  estate,  §  371,  p.  577. 

enforcement  of  charge  by  sale  as  for  payment  of  debts,  §  372,  p.  578. 

action  against  devisee,  §  372,  p.  579. 
legacies  to  debtors  and  creditors,   §  373,  p.  579. 
when  vested  legacy  becomes  due,  §374,  p. '580. 

possession  of  contingent  legacy  before  it  vests  in  possession,  §  374, 
p.  581. 


INDEX.  1103 

LEGACIES    (Continued). 

legacies  to  issue  or  relations  dying  before  the  testator,  §  375,  p.  582. 
gift  to  two  or  more  parties  without  limitation  or  explanation,  §  375, 

p.  582. 

lapsed  legacies  passing  into  the  residuary  estate,  §  376,  p.  583. 
abatement  of  legacies,  §  377,  p.  585. 
ademption  of  legacies,  §  378,  p.  586. 

LEGATEES.     See,  also,  ACTIONS;  DEVISEES;  HEIBS. 

when  personally  liable  for  debts  and  charges,  §§228,  361,  p.  560. 

FORMS. 

Petition   for  payment   of  legacy   pending  administration,  No.   99a, 
p.  337.     See,  also,  forms  under  DEVISEES  AND  HEIRS. 

LIENS.     See,  also,  MORTGAGES;  VENDORS  AND  VENDEES. 

power  of  representative  to  enforce,  §§  204,  252,  pp.  300,  390. 
enforcement  of  liens  against  property  of  the  estate,  §  276,  p.  432. 

LOST  WILL.     See  WILLS. 


H 
MARRIAGE. 

effect  of  on  will,  §  66,  p.  101. 

of  feme  sole  executrix  or  administratrix,  §  163,  p.  239. 

Oregon  statute,  §  163,  p.  240. 

as  prerequisite  of  dower  or  curtesy,  §  388e,  p.  605. 

property  right  in  real  estate  acquired  by,  §  429,  p.  712. 

MARRIED  WOMEN. 

competency  of  to  make  wills,  §  49,  p.  82. 

receive  letters  testamentary,  §  123,  p.  183. 

letters  of  administration.  §  141,  p.  214. 
as  witness  for  husband  as  to  transactions  with  decedent,  §  293;  p. 

MORTGAGES. 

foreclosure  of,  §  204,  p.  300. 

property  bid  in  on  foreclosure,  §  204,  p.  301. 

powers  of  executor  to  execute,  §  245,  p.  375. 

proceedings  in  county  court  for  grant  of  license,  §  246,  p.  376. 


1104  INDEX. 

MORTGAGES  (Continued). 

appointment  of  special  administrator  to  execute,  §  247,  p.  379. 

hearing  and  grant  of  license,  §  248,  p.  3S1. 

mortgage  and  notes,  §  249,  p.  383. 

report  and  discharge  of  special  administrator,  §  250,  p.  385. 

FORMS 

Petition  for  order  to  mortgage  real  estate — Oregon,  No.  115a,  p.  377. 
Order   granting   license   to    mortgage   property — Oregon,    No.    115b, 

p.  377. 

Petition  for  license  to  mortgage  real  estate,  No.  116,  p.  378. 
Petition  for  appointment   of   special   administrator  and   for   license 

to  mortgage  real  estate,  No.  117,  p.  380. 
License  to  executor  or  administrator  to  mortgage  real  estate  of  his 

decedent,  No.  118,  p.  381. 
Order  for  appointment  of  special  administrator  to  execute  notes  and 

mortgage,  No.  119,  p.  382. 

Letters  of  special  administration,  No.  120,  p.  382. 
Mortgage  by  personal  representative,  No.  121,  p.  384. 
Mortgage  notes  of  executor  or  administrator,  No.  122,  p.  385. 
Report    of    executor   or    administrator    on    mortgaging   real    estate, 

No.  123,  p.  386. 
Confirmation  of  report,  No.  124,  p.  387. 

foreclosure  of  mortgages  on  property  of  the  estate,  §  276,  p.  432. 
filing  same  as  claims  against  the  estate,  §  276,  p.  433. 
redemption  of  mortgages. 

rule  in  intestate  estates,  §  360,  p.  557. 

testate  estates,  §  360,  p.  558. 

redemption  by  order  of  court,  §  360,  p.  558. 

sales  of  mortgaged  property,  §  360,  p.  558.     See,  also,  SALES. 

application  of  proceeds  of  sale,  §  360,  p.  558. 

MORTGAGING  REAL  ESTATE. 

guardians. 

jurisdiction  of  district  court  to  grant  license,  §  545,  p.  901. 

notice  of  hearing  and  service,  §  545,  p.  901. 

hearing  on  petition,  §  546,  p.  903. 

bond,  §  546,  p.  903. 

power  not  possessed  by  Oregon  county  court,  §  545,  p.  901. 

mortgages  for  purpose  of  paying  off  encumbrance,  Appendix,  p.  966. 


INDEX.  1105 

MORTGAGING  REAL  ESTATE   (Continued). 

FORMS. 

Petition  by  guardian  for  authority  to  mortgage  real  estate,  No.  246, 

p.  902. 

Notice  to  ward,  No.  247,  p.  903. 
Order  authorizing  guardian  to  execute  mortgage,  No.  248,  p.  904. 

MURDER, 

when  it  changes  right  of  inheritance,  §  444,  p.  743. 

N 

NEGOTIABLE  INSTRUMENTS.     See,  also,  ASSETS— PERSONAI/TY. 
as  payments  of  debts  due  the  estate,  §  236,  p.  353. 
indorsement  of  by  representative,  §  236,  p.  354. 
transfer  of  notes  taken  as  representative,  §  236,  p.  354. 

NEXT  OF  KIN. 

definition,  §  39,  p.  55. 

rights  of  to  letters  of  administration,  §§  142,  143,  pp.  214,  216. 

tables  of  next  of  kin,  pp.  957,  958. 

NONRESIDENTS.     See,    also,    ANCILLARY    ADMINISTRATION;    FOREIGN 
WILLS;  FOREIGN  GUARDIANS. 

administration  of  estates  of,  §  145,  p.  217. 

sales  of  real  estate  of  for  payment  of  debts,  §  335,  p.  524. 

powers  of  guardians  of,  §  506,  p.  844. 

NUNCUPATIVE  WILL.     See,  also,  WILLS. 
definition,  §  25,  p.  38. 
execution  of,  §  47,  p.  79. 

o 

OATHS— OFFICIAL. 

of  county  judge,  §  2,  p.  5. 
acting  county  judge,  §  8,  p.  12. 
clerk  of   county   court,   §  12,   p.  20. 
of  executor,  §  127,  p.  193. 
of  administrator,  §  153,  p.  228. 
70 — Pro.  Ad. 


1106  INDEX. 

OATHS— OFFICIAL  (Continued). 

of  executor  or  administrator  on  sale  of  real  estate,  §  327,  p.  510. 
of  guardian,  §  504,  p.  840. 

of  guardian  on  sale  of  real  estate,  §  533,  p.  884. 
For  forms,  see  titles  of  the  different  officers. 


PARTNERSHIP. 

dissolution  by  death  of  partner,  §  237,  p.  356. 

right  of  surviving  partner  in  firm  assets,  §  237,  p.  357. 

duty  of  surviving  partner,  §  238,  p.  357. 

right    of   surviving    partner   to    administration    of   the    partnership, 

§  238a,  p.  358. 

powers  of  partnership  administrator,  §  238a,  pp.  358,  359. 
supervisory  powers  of  the  county  court,  §  238a,  p.  358. 
limitation  on  powers,  §  238b,  p.  359. 
settlement  by  remedies  at  law,  §  238b,  p.  360. 
right  of  inspection  of  partnership  books,  §  238b,  p.  360. 
settlement  of  partnership  administration,  §  238b,  p.  360. 
settlement  between  surviving  partner  and  executor  or  administrator, 

§  239,  p.  361. 

adjustment  of  accounts  by  action  in  equity,  §  239,  p.  362. 
possession  of  partnership  real  estate,  §  240,  p.  362. 
when  and  how  such  real  estate  sold,  §  240,  p.  362. 
appointment  of  special  administrator  of  partnership  interest,  §  241, 

p.  364. 
title  of  executor  or  administrator  who  is  surviving  partner,   §  241, 

p.  364. 

liability  of  such  executor  or  administrator  to  the  estate,  §  241,  p.  364. 
notice  of  application  for  appointment  of  special  administrator,  §  241, 

p.  365. 

account  of  special  administrator,  §  242,  p.  368. 
fees  of  special  administrator,  §  242,  p.  368. 
sale  of  interest  of  estate  in  partnership  property,  §  243,  p.  370. 
proceedings  for  sale,  §  244,  p.  370. 

FORMS. 

Report  of  settlement  of  partnership  interests,  No.  103,  p.  363. 
Petition    for    appointment    of   special    administrator    to    administer 

partnership  assets,  No.  104,  p.  365. 
Order  for  appointment  of  special  administrator,  No.  105,  p.  366. 


INDEX.  1107 

PARTNERSHIP  (Continued). 

Bond  of  special  administrator  to  administer  partnership  assets, 
No.  106,  p.  366. 

Appointment  of  special  administrator  to  administer  partnership  as- 
sets, No.  107,  p.  367. 

Notice  of  hearing  of  report  of  partnership  settlement,  No.  108, 
p.  368. 

Order  confirming  report  of  settlement  of  partnership,  No.  109,  p.  369. 

Discharge  of  special  administrator,  No.   110,  p.  369. 

Petition  for  license  to  sell  partnership  property,  No.  Ill,  p.  371. 

License  to  executor  or  administrator  to  sell  interest  of  his  decedent 
in  a  partnership,  No.  113,  p.  362. 

Report  of  executor  or  administrator  on  sale  of  partnership  property, 
No.  115,  p.  373. 

Confirmation  of  executor's  sale  of  partnership  interest,  No.  115, 
p.  374. 

PAYMENT  OF  DEBTS.    See  DEBTS  or  DECEDENT — PAYMENT. 
PAYMENT  OF  LEGACIES.     See  LEGACIES. 

POSSESSION  OF  PROPERTY  OF  DECEDENT.     See,  also,  ASSETS. 
right  of  equitable  owner  of  personalty,  §  193,  p.  286. 

bailee  or  holder  under  contract  for  purchase,  §  193;  p.  286. 
right  of  possession  before  grant  of  letters,  §  194,  p.  286. 
right  to  real  estate,  §  199,  p.  294. 
letters  as  authority  to  take  possession,  §  199,  p.  295. 
right  of  devisee  when  residuary  legatee  bond  is  given,  §  199,  p.  295. 
recovery  of  real  estate,  §  200,  p.  296.     See,  also,  EJECTMENT. 

POSTHUMOUS  CHILD.     See  CHILDREN. 

POWER  OF  SALE.     See,  also,  SALES — PERSONAL  PROPERTY;   SALES- 
REAL  ESTATE. 

when  added  to  a  life  estate  does  not  convey  the  fee,  §  30,  p.  44. 

not  an  inherent  power  of  executors  and  administrators,  §§  221,  310. 
p.  325. 

implied  power  of  executor  to  sell  real  estate,  §  221,  p.  325. 

general  power,   §  221,  p.  325. 

limited  powers,  §  221,  p.  326. 

sales  under  powers,  how  conducted,  §  221,  p.  326. 
report  and  confirmation,  §  221,  p.  327. 

by  administrators  with  the  will  annexed,  §  222,  p.  327. 


1108  JNDEX. 

PRESENCE  OF  TESTATOR. 

what  conditions  constitute,  §  43,  p.  64. 

PROBATE. 

general  definition,  §  1,  p.  1. 

of  wills,  §  77,  p.  115.    See,  also,  WILLS — PROBATE. 

PROCESS  OF  COUNTY  COURT, 
how  issued,  §  14,  p.  23. 
service,  §§  13,  14,  p.  23. 

PRODUCTION  OF  WILL  IN  COURT.     See,  also,  WILLS— PRODUCTION. 
proceedings,  §  74,  p.  110. 

PRESENTATION  OF  CLAIMS  TO  REPRESENTATIVE, 
facts  constituting  a  sufficient  presentation,  §  273a,  p.  423. 

PRESUMPTIONS. 

general  presumption  attaching  to  probate  decrees,  §  1,  p.  2. 

regularity  of  appointment  of  acting  county  judge,   §  8,  p.  13. 

regular  attestation  clause  to  will,  §  44,  p.  66. 

of  devise  of  an  estate  in  fee,  §  30,  p.  42. 

from   failure   to   find   will   known   to   have   been   in   existence,    §  70, 

p.  105. 

of  mental  capacity  on  probate  hearing,   §  81,  p.  123. 
of  continuation  of  insanity,  §  81,  p.  123. 
of  unjust  provisions  in  a  will,  §  90,  p.  138. 
from  large  gift  to  person  holding  trust  relation,  §  91,  p.  141. 
from  gift  to  draftsman  of  a  will,  §  92,  p.  143. 
from  absence  of  party  for  seven  years,  §  140,  p.  211. 
regularity  of  letters  of  administration,  §  154,  p.  230. 
ownership  of  separate  property  of  wife,  §  178,  p.  263. 
gift  causa  mortis,  §  379,  p.  590. 

in  regard  to  appraised  value  of  property,  §  414,  p.  681. 
from  giving  of  bond  by  residuary  legatee,  §  464,  p.  774. 
of  residence  of  minor  child,  §  497,  p.  831. 
from  the  relationship  of  guardian  and  ward,  §  556,  p.  917. 


INDEX.  1109 

R 

REAL  ESTATE.     See  ASSETS — REAL  ESTATE;  POWERS  or  SALE, 

RECORDS. 

of  county  court,  §  17,  p.  26. 

of  Oregon  county  court,   §  17,  p.  28. 

certifying  records,  §  18,  p.  29. 

public  character  of  county  court  records,  §  19,  p.  29. 

inheritance  tax  records,  §  409,  p.  670. 

inheritance  tax  records — Oregon,  §  409,  p.  671. 

REMOVAL  OF  EXECUTORS  AND  ADMINISTRATORS.     See  EXECU- 
TORS AND  ADMINISTRATORS. 

REMOVAL  OF  GUARDIANS.     See  GUARDIANS. 

REPUBLICATION  OF  WILL, 
when  required,  §  46,  p.  67. 
effect  of  codicil  on  irregularly  executed  will,  §  46,  p.  67. 

RESIDUARY  ESTATE, 
definition,  §  40,  p.  57. 

residuary  gift  to  two  or  more  persons,  §  40,  p.  58. 
lapsed  legacies,  §  376,  p.  583. 
void  legacies,  §  376,  p.  584. 

REVIVOR  OF  ACTIONS. 

actions  which  survive,  §  201,  p.  297. 

actions  which  survive — Oregon,  statute,  §  201,  p.  298. 

REVOCATION  OF  PROBATE.     See  WILLS — PROBATE. 
REVOCATION  OF  WILLS.     See  WILLS. 

s 

SALES— BY  EXECUTORS  AND  ADMINISTRATORS. 

personal  property. 

rights  of  representative  at  common  law,  §  223,  p.  329. 
jurisdiction  of  county  court  to  order  sale,  §  223,  p.  329. 


1110  INDEX. 

SALES— BY  EXECUTOES   AND  ADMINISTRATORS    (Continued), 
purchase  of  real  estate  with  personal  assets,  §  223,  p.  330. 
sales  in  bulk,  §  223,  p.  331. 

sales  under  order  of  court — Oregon  rule,  §  223,  p.  330. 
purchases  by  representative,   §  224.  p.  333. 
the  rule  of  caveat  emptor,  §  225,  p.  333. 
right  of  party  to  follow  assets  fraudulently  sold,  §  226,  p.  333. 

FORMS. 
Application  of  executor  or  administrator  for  leave  to  sell  personalty, 

No.  97,  p.  332. 
Order  for  sale  of  personalty,  No.  98,  p.  332. 

real  estate. 

sales  by  executors,  §  221,  p.  325.     See,  also,  POWERS. 
sales  by  administrator  with  the  will  annexed,  §  222,  p.  327.     See,  also, 
POWERS. 

for  payment  of  debts. 

liability  of  real  estate  for,  §  309,  p.  477. 

duty  of  executor  or  administrator  to  procure  license,  §  310,  p.  478. 

nature  of  proceeding,  §  311,  p.  479. 

jurisdiction  of  district  court  or  judge  thereof,  §  311,  p.  480. 

jurisdiction  of  county  court,  §  311,  p.  480. 

jurisdiction  of  district  judge  at  chambers,   §  312,  p.  481. 

time  for  filing  petition,  §  312,  p.  481. 

necessary  parties  to  the  proceeding,  §  313,  p.  482. 

necessary  allegations  of  petition,  §  314,  p.  483. 

personalty  received,  §  314,  p.  484. 

description  of  lands,  §  315,  p.  485. 

condition  of  lands,  §  315,  p.  486. 

allegations  as  to  liens,  §  314,  p.  485. 

sales  of  realty  before  personalty  is  sold,  §  314,  p.  485. 

names  and  residence  of  heirs,  §  314,  p.  485. 
order  to  show  cause,  §  316,  p.  489. 
citation  to  parties,  §  316,  p.  489. 
contents  of  order,  §  316,  p.  490. 
service  of  order,  §  317,  p.  491. 
proof  of  service,  §  317,  p.  492. 
service  under  Oregon  practice,   §  317,  p.  494. 
bond  to  prevent  sale,  §  317,  p.  493. 
payment  of  debts  to  prevent  sale,  §  318,  p.  495. 
hearing,  §  319,  p.  495. 


INDEX.  1111 

SALES— BY  EXECUTORS   AND  ADMINISTRATORS    (Continued), 
general  duty  of  court,  §  319,  p.  496. 
proof  of  insufficiency  of  assets,  §  320,  p.  497. 
insufficiency  caused  by  misuse   of   assets   by  administrator,   §  321, 

p.  497. 

proof  of  costs  and  indebtedness  of  estate,  §  321,  p.  497. 
lands  subject  to  sale,  §  322,  p.  499. 
attacking  title  of  the  estate,  §  322,  p.  499. 
discretion  of  court,  §  322,  p.  500. 
order  of  sale,  §  323,  p.  501. 
sale  of  entire  tract,  §  323,  p.  502. 
description  of  lands,  §  323,  p.  502. 
filing  order  in  office  of  clerk  of  court,  §  323,  p.  502. 
•when  additional  bond  required,  §  324,  p.  503. 
penalty  of  bond — Oregon  practice,  §  324,  p.  503. 
when  bond  may  be  given  after  sale,  §  324,  p.  504. 
delivery  of  copy  of  license  to  representative,  §  325,  p.  506. 
notice  of  time  and  place  of  sale,  §  325,  p.  507. 
right  of  representative  to  fix  terms  of  sale,  §  325,  p.  507. 
posting  notices,   §  325,   p.  508. 

publication  and  posting  notice — Oregon  statute,  §  325,  p.  508. 
notice  of  private  sale,  §  325,  p.  508. 
sales  of  encumbered  property,  §  326,  p.  510. 
oath  of  representative,  §  327,  p.  510. 
duty  of  representative  in  conducting  sale,  §  328,  p.  511. 
sale  by  parcels,  §  328,  p.  512. 

duty  in  regard  to  consummating  sale,  §  328,  p.  513. 
payment  of  purchase  price,  §  328,  p.  513. 
right  to  adjourn  sale,  §  329,  p.  514. 
notice  of  adjournment,  §  329,  p.  514. 
Bale  by  personal  representative  to  himself,  §  330,  p.  515. 
parties  disqualified  as  purchasers,  §  330,  p.  515. 
confirmation  of  sale,  §  331,  p.  516. 

matters  passed  on  by  court  in  confirming  sales,  §  332,  p.  518. 
irregularities  cured  by  confirmation,  §  332,  p.  519. 
date  when  purchaser  takes  title,  §  332,  p.  520. 
when  payment  of  purchase  price  made,  §  332,  p.  520. 
return  and  confirmation — Oregon,   §  331,  p.  517. 
sale  of  contract  interest,  §  333,  p.  521. 

completing  sale  after  death  of  representative,  §  334,  p.  523. 
right  of  foreign  representative  to  sell  real  estate,  §  335.  p.  524. 
proceedings  for  sale  by  foreign  representative,  §  335,  p.  524. 


1112  INDEX. 

SALES— BY  EXECUTOES   AND   ADMINISTRATORS    (Continued), 
taxation  of  costs,  §  336,  p.  525. 
contents  of  representative's  deed,  §  337,  p.  525. 
interest  conveyed  by  the  deed,  §  338,  p.  529. 
rule  as  to  secret  equities,   §  338,  p.  529. 
sales  of  property  in  which  there  is  a  homestead  exemption,   §  339, 

p.  530. 

FORMS. 
Petition  by  executor  or  administrator  for  license  to  sell  real  estate, 

No.  143,  p.  487. 

Petition  for  license  to  sell  real  estate — Oregon,  No.  143a,  p.  488. 
Order  to  show  cause  why  license  should  not  be  granted  to  sell  realty, 

No.  144,  p.  491. 

Order  of  judge  of  district  court  fixing  amount  of  bond  on  applica- 
tion to  prevent  sale,  No.  145,  p.  493. 
Bond  to  prevent  sale  of  real  estate,  No.  146,  p.  494. 
License  to  sell  real  estate,  No.  147,  p.  504. 
Bond  of  executor  on  sale  of  realty,  No.  148,  p.  505. 
General  bond  on  sale  of  realty,  No.  149,  p.  506. 
Notice  of  executor's  or  administrator's  sale,  No.  150,  p.    509. 
Affidavit  of  posting  notices,  No.  151,  p.  509. 
Oath  of  executor  or  administrator  on  sale  of  real  estate,  No.  152, 

p.  511. 
Eeturn  of  executor  or  administrator  on  sale  of  real  estate,  No.  153, 

p.  517. 

Confirmation  of  sale,  No.  154,  p.  520. 
Bond  of  purchaser  of  vendee's  interest  in  land  contract,  No.  155, 

p.  522. 

Confirmation  of  sale  of  contract  equity  in  real  estate,  No.  156,  p.  523. 
Executor's  or  administrator's  deed — Oregon,  No.   156a,  p.  527. 
Executor's  or  administrator's  deed,  No.  157,  p.  527. 
Assignment  of  land  contract  by  executor  or  administrator,  No.  158, 

p.  528. 

guardians. 

jurisdiction  of  courts  over  sales  of  real  estate,  §  526,  p.  874. 

right  of  guardian  to  petition  for  sale,  §  527,  p.  875. 

special   proceedings   for  sale   of   real  estate   of  incompetent   ward, 

§  527,  p.  876. 

interests  in  real  estate  subject  to  sale,  §  528,  p.  877. 
necessary  allegations  of  petition,  §  529,  p.  878.  . 
verification  of  petition,  §  529,  p.  879. 


INDEX.  1113 

SALES— BY  EXECUTORS   AND  ADMINISTRATORS    (Continued), 
order  to  show  cause,  §  530,  p.  880. 
service  of  order,  §  530,  p.  880. 
hearing  on  application  for  sale,  §  531,  p.  882. 
discretion  of  district  judge,   §  531,  p.  882. 
contents  of  license,  §  532,  p.  883. 
bond  of  guardian,  §  533,  p.  884. 
oath  of  guardian,  §  533,  p.  885. 
notice  of  sale,  §  534,  p.  886. 
terms  of  sale,  §  534,  p.  886. 

agreement  with  intending  purchaser,   |  534,  p.  887. 
purchase  by  guardian,  §  534,  p.  887. 
confirmation  of  sale,  §  535,  p.  889. 
irregularities  cured  by  confirmation,  §  535,  p.  890. 
guardian's  deed,  §  535,  p.  891. 
rule  of  caveat  emptor,  §  537,  p.  893. 

use  of  proceeds  for  maintenance  and  support  of  ward,  §  537,  p.  893. 
investments  under  order  of  court,  §  538,  p.  894. 
when  proceeds  deemed  real  property,  §  538,  p.  894. 
foreign  guardians. 

jurisdiction  of  court  to  authorize,  §  536,  p.  891. 
procedure  for  sale,  §  536,  p.  891. 
additional  bond,  §  536,  p.  892. 
Oregon  practice,  §  536,  p.  892. 

FORMS. 
Petition  to  county  commissioners  for  approval  of  proposed  sale  of 

incompetent  person's  real  estate,  No.  237,  p.  876. 
Certificate  of  approval  by  commissioners  of  proposed  sale,  No.  238, 

p.  877. 
Petition  by  guardian  for  leave  to  sell  real  estate  of  his  ward,  for 

his   education   and    maintenance   and   for   reinvestment,   No.   239, 

p.  879. 
Order  to  show  cause  why  license  should  not  issue  to  guardian  for 

sale  of  his  ward's  real  estate  to  raise  funds  for  his  maintenance, 

No.  240,  p.  881. 

License  to  guardian  to  sell  real  estate  of  ward,  No.  241,  p.  883. 
Guardian's  bond  on  sale  of  real  estate,  No.  242,  p.  885. 
Return  of  guardian  on  sale  of  his  ward's  real  estate,  No.  243,  p.  888. 
Confirmation  of  sale,  No.  244,  p.  890. 
Bond  of  foreign  guardian  on  sale  of  real  estate,  No.  245,  p.  892. 


1114  INDEX. 

SALES— BY   EXECUTORS   AND  ADMINISTRATORS    (Continued). 

guardians  of  interest  of  insane  spouse  in  real  estate, 
jurisdiction  of  district  court  over,  §  547,  p.  904. 
petition,  §  547,  p.  905. 

service  of  order  to  show  cause,  §  548,  p.  906. 
hearing,  bond,  §  548,  p.  906. 
sale  and  confirmation,  §  549,  p.  908. 

FORMS. 
Petition  for  license  to  sell  interest  of  insane  spouse  in  real  estate, 

No.  249,  p.  905. 
Bond  of  guardian  on  sale  of  interest  of  insane  spouse  in  real  estate, 

No.  250,  p.  907. 
Order   empowering   guardian    of    insane   person    to    sell   interest    in 

lands,  No.  251,  p.  907. 

SETOFF. 

proof  of  when  claim  is  filed  against  the  estate,  §  283,  p.  441. 
cannot  be  set  up  by  debtor  when  claim  not  presented  or  filed,  §  279, 
p.  439. 

SETTLEMENT. 

of  estate  within  what  time  required,  §  411,  p.  674. 

between  guardian   and  ward  out  of  court,  when  permitted,  §  555, 

p.  916. 
how  set  aside,  §  556,  p.  917. 

SHERIFF. 

service  of  process  by,  §  14,  p.  23. 
fees  of,  §21,  p.  32. 

SIGNATURE  TO  A  WILL.     See  WILLS. 

SOUND  MIND. 

definition,  §  50,  p.  83.     See,  also,  WILLS— TESTAMENTARY  CAPACITY. 

SPECIAL  PROCEEDINGS. 

for  production  of  will,  §  75,  p.  110.    See,  also,  WILLS — PRODUCTION 
or. 


INDEX.  1115 

SPECIAL  PROCEEDINGS  (Continued). 

for  disclosure  of  assets, 
when  begun,  §  197,  p.  291. 
examination  of  party  cited,  §  198,  p.  293. 
order  of  county  court,  §  198,  p.  293. 
proceedings  under  Oregon  practice,  §  198,  p.  293. 

FORMS. 

Petition  for  disclosure  of  property  of  a  decedent,  No.  86,  p.  291. 
Citation,  No.  87,  p.  292. 

Oath  of  person  cited  to  disclose,  No.  88,  p.  294. 
Caption  for  interrogatories,  No.  89,  p.  294. 

for  recovery  of  personalty  from  heir  or  legatee, 
liability  of  heir  or  legatee,  §  207,  p.  303. 
proceedings  before  county  court,  §  207,  p.  304. 

FORMS. 
Petition  for  accounting  for  personalty,  No.  90,  p.  304. 

to  enforce  contribution. 

liability   of  heirs,  legatees   and   devisees   to  contribute   to   make  up 

share  of  posthumous  or  pretermitted  child,  §  228,  p.  338. 
liability  when  distributee  insolvent,  §  228,  p.  339. 
jurisdiction  of  county  court,  over,  §  228,  p.  339. 

of  court  of  equity,  §  228,  pp.  339,  342. 
notice  and  service,  §  228,  p.  341. 

FORMS. 
Petition  for  legatee  or  devisee  to  pay  share  of  insolvent,  No.  100, 

p.  339. 

Notice  to  legatee  or  devisee,  No.  101,  p.  341. 
Decree   requiring  legatee  or  devisee  to   contribute  for  the  payment 

of  debts  and  expenses,  No.  102,  p.  341. 

for  enforcement  of  contracts  for  sale  of  real  estate.     See  VENDORS 

AND  VENDEES. 

for  collection  of  claims,  §  275c,  p.  426.     See,  also,  DEBTS  OF  DECE- 
DENT— PAYMENT. 

SPECIFIC  PERFORMANCE.     See,  also,  VENDORS  AND  VENDEES. 

liability  of  heirs  or  devisees  on  contracts  for  sale  of  real  estate, 
§  257,  p.  401. 


1116  INDEX. 

SPECIFIC  PERFORMANCE   (Continued). 

action  by  executor  or  administrator,  §  257,  p.  401. 

of   contracts  to   devise   or  bequeath,   §  302,  p.  465. 

rule  governing  their  enforcement,  §  302,  p.  465. 

consideration  of  contract,  §  303,  p.  466. 

contract  to  make  party  an  heir,  §  303,  p.  467. 

relief  granted,  §  304,  p.  467. 

when  a  homestead  interest  is  included  in  the  property,  §  304,  p.  468. 

SPENDTHRIFT. 

appointment  of  guardian  for,  §  501,  p.  836. 
notice,  and  hearing  on  application,  §  501,  p.  837. 
contracts   of   spendthrift   pending   application   for  appointment   of 
guardian,   §  502,  p.  838. 

STATUTE  OF  LIMITATIONS. 

bar  of  as  to  allowance  of  claims,  §  279,  p.  436. 

effect  of  death  of  decedent,  §  279,  p.  437. 

taxes  on  personalty,  §  279,  p.  437. 

recovery  of  lands  sold  by  executor  or  administrator,  §  340,  p.  532. 

void  sales,  §  340,  p.  532. 

voidable  sales,  §  340,  p.  533. 

recovery  of  lands  sold  by  guardian,  §  539,  p.  895. 

STATUTE  OF  NONCLAIM. 

definition,  §  280,  p.  437. 

as  a  bar  to  allowance  of  claims,  §  280,  p.  438. 

failure  to  file  setoff,  §  280,  p.  438. 

neglect  of  creditor  to  apply  for  administration  for  two  years,  §  281, 

p.  439. 
filing  claims  when  letters  granted  on  application  of  next  of  kin, 

§281,  p.  439. 

SURETIES.     See  BONDS. 

T 

TABLES. 

process  and  service  in  probate  matters  in  Nebraska,  p.  949. 
process  and  service  in  guardianship  matters  in  Nebraska,  p.  951. 
process  and  service  in  probate  matters  in  Oregon,  p.  953. 
process  and  service  in  guardianship   matters  in   Oregon,   p.  955. 


INDEX.  1117 

TABLES  (Continued). 

table  of  descent — Nebraska,  p.  957. 
table  of  descent — Oregon,   p.  958. 
life  expectancy  tables,  p.  959. 
interest  tables,  p.  961. 

TAXES. 

liability  of  personal  representative  for,  §  220,  p.  324. 

duty  of  owner  of  life  estate  to  pay,  §  32,  p.  45. 

personal,  not  barred  by  statute  of  limitations,  §  280,  p.  437. 

personal,  rank  with  claims  of  general  creditors,  §  365,  p.  569. 

TESTAMENTARY  CAPACITY.     See  WILLS. 

TORTS. 

liability  of  estate  for,  §  286,  p.  447. 
liability  of  ward  for,  §  515,  p.  860. 

TRANSACTIONS  WITH  DECEASED  PARTIES, 
what  is  a  transaction,  §  291,  p.  452. 
what  constitutes  direct  legal  interest,  §  293,  p.  454. 
evidence  of  entire  transaction  or  conversation  admissible  when  part 

has  been  introduced,  §  294,  p.  456. 
declarations  or  admissions  to  third  parties,  §  295,  p.  457.     See,  also, 

DEBTS  OF  DECEDENT — ESTABLISHMENT  OF  CLAIMS;  WITNESSES. 


u 

UNDUE  INFLUENCE. 

defined,  §  87,  p.  134.     See,  also,  WILLS— PBOBATI. 


V 

VENDORS  AND  VENDEES.     See,  also,  SPECIFIC  PERFORMANCE. 

inventory  of  land  contract,  §  179,  p.  263. 

right  of  vendor  or  vendee  to  maintain  special  proceedings  for  enforce- 
ment of  contract,  §  252,  p.  389. 

option  of  executor  or  administrator  of  vendor  in  case  of  default, 
§  252,  p.  390. 

•who  may  bring  special  proceedings  under  the  statute,  §  252,  p.  389. 


1118  INDEX. 

VENDORS   AND  VENDEES  (Continued), 
petition  by  vendee,  §  253.  p.  391. 
petition  by  vendor,  §  233,  p.  3iH. 
necessary   parties,   §  253,   p.  391. 
allegations  of  the  petition,  §  253,  p.  392. 
notice  of  hearing  and  service  thereof,  §  254,  p.  395. 
hearing,  §  255,  p.  396. 
indemnity  bond,  §  255,  p.  397. 
dismissal  without  prejudice  to  action  for  specific  performance,  §  255, 

p.  397. 

taxation  of  costs,  §  256,  p.  398. 
contracts  for  sale  of  property  which  includes  the  homestead,  §  258, 

p.  402. 
petition  for  order  authorizing  completion  of  contract,  §  252,  p.  389. 

FORMS. 
Petition  by  vendee  to  require  executor  or  administrator  to  execute 

deed,  No.  125,  p.  392. 
Petition  by  executor  for  authority  to  execute  deed  to  land  sold  under 

contract,  No.  126,  p.  394. 
Notice  of  hearing,  No.  127,  p.  396. 
Decree  directing  executor  or  administrator  to  convey  realty,  No.  128, 

p.  398. 
Decree  authorizing  executor  or  administrator  to  complete  conveyance 

of  realty  and  convey  realty,  No.  129,  p.  399. 
Bond  on  executing  deed  to  realty,  No.  130,  p.  400. 
Executor's  or  administrator's  deed  on  sale  of  real  estate,  No.  131, 

p.  400. 

w 

WARD.     See  GUARDIANS. 

WASTE. 

liability  of  owner  of  life  estate  or  estate  for  years  for,  §  32,  p.  45. 
liability  of  owner  of  estate  of  dower  or  curtesy  for,  §  388o,  p.  622. 

WILLS. 

definitions,  §  25,  p.  37. 
codicil,  §  25,  p.  38. 
execution. 

statutory  requirements,  §  41,  p.  60. 
signing,  §  42,  p.  61. 


INDEX.  1119 


WILLS  (Continued). 

witnessing,  §  43,  p.  62. 

who  are  competent  witnesses,  f  43,  p.  63. 

removal  of  incompetency,  §  43,  p.  63. 

presence  of  testator,  §  43,  p.  64. 

attestation,  §  44.  p.  65. 

attestation  clause,  §  44,  p.  66. 

alterations,  §  45,  p.  06. 

ropiiMication,  §  40,  p.  67. 

nuncupative  will,  §  47,  p.  78. 

soldiers  and  mariners,  §  48,  p.  80. 

execution  in  foreign  state,  §  103,  p.  155. 

joint,  §  25,  p.  37. 
lost. 

I>n -sumptions  from  failure  to  find,  §  70,  p.  105. 

jurisdiction  of  county  court  over,  §  71,  p.  106. 

proof  of  execution  and  contents,  §  72,  p.  107. 

prolate  of  portion  of  instruments,  8  72,  p.  107. 
nuncupative. 

witnesses  to,  $  47,  p.  78. 

•dial  elements  of,  §  47,  p.  78. 

cannot  devise  property,  §  47,  p.  79. 

FORMS. 
Nuncupative  will,  No.  14,  p.  80. 

preparation. 

general  rules  of  construction,  §  26,  p.  38. 

gifts  to  unlawful  objects,  §  27,  p.  40. 

perpetuities,  §  27,  p.  40. 

failure  to  provide  for  surviving  spouse,  §  27,  p.  40. 

rule  in  Shelley's  Case,  §  28,  p.  41. 

devise  of  an  estate  in  fee,  §  29,  p.  42. 

presumption  as  to  conveyance  of  fee,  §  30,  p.  42. 

conflicting  clauses,  §  30,  p.  43. 

determinate   fee,  §  31,  p.  44. 

life  estates,  §  32,  p.  45. 

future  interests,  §  33,  p.  45. 

executory  devises,  §  33,  p.  46. 

life  estate  with  power  of  appointment,  $  33,  p.  46. 

estates  upon  conditions  or  contingencies,  §  34,  p.  47. 


1120  INDEX. 

WILLS  (Continued). 

limitation  on  devise  in  fee,  §  34,  p.  48. 

trusts,  §  35,  p.  48. 

spendthrift  trust,  §  35,  p.  49. 

constructive  trust,  §  35,  p.  49. 

charities,  §  36,  p.  50. 

particular  words  and  phrases  referring  to  real  estate  interests,  §  37, 

p.  51. 

gifts  to  children,  issue  or  heirs,  §  38,  p.  54. 
gifts  to  next  of  kin  or  relations,  §  39,  p.  54. 
gifts  to  a  class,  §  26,  p.  39. 
residuary  estate,  §   40,  p.  57. 
gifts  or  residuary  estate  to  two  or  more  persons,  §  40,  p.  58. 

FORMS. 

Will  bequeathing  everything  to  wife,  No.  11,  p.  68. 
Will  giving  life  estate  to  widow  and  remainder  to  heirs,  No.  12,  p.  68. 
~— — Will  placing  property  in  control  of  trustees,  No.  13,  p.  69. 
Nuncupative  will,  No.  14,  p.  80. 
Residuary  clause,  No.  13a,  p.  70. 

Devise  of  life  estate  with  power  of  sale,  No.  13b,  p.  71. 
Devise  of  life  estate  with  limited  power  of  disposition  of  the  fee, 

No.  13c,  p.  71. 

Devise  of  life  estate  with  full  power  of  disposition,  No.  14d,  p.  71. 
Devise  subject  to  an  annuity,  No.  I3e,  p.  71. 
Devise — Condition  precedent,  No.  13f,  p.  72. 
Devise  of  defeasible  fee,  No.  13g,  p.  72. 

Devise  of  remainder  with  conditional  limitation  over,  No.  13h,  p.  72. 
Gift  to  executors  for  the  benefit  of  the  children  and  with  power  to 

sell  and  divide  proceeds,  No.  13i,  p.  72. 
Gift  to  wife  of  statutory  share,  No.  13j,  p.  73. 
Gift  to  a  church,  No.  13k,  p.  73. 
Gift  to  a  church  with  limitation  over  on  failure  of  condition,  No. 

141,  p.  73. 

Devise  discharged  from  liens  of  debts  of  devisee,  No.  13m,  p.  74. 
Bequest  to  trustee  for  reasons  which  terminate  the  trust  when  they 

occur,  No.  13n,  p.  74. 
Spendthrift  trust,  No.  13o,  p.  74. 
Bequest  in  trust  for  invalid  son,  No.  13p,  p.  75. 
Devise  to  children  vesting  when  they  attain  fixed  ages,  No.  13q,  p.  75. 
Devise  with  restriction  against  sale  of  liquor  on  the  premises,  No.  13r, 

p.  75. 


INDEX.  1121 

WILLS   (Continued). 

Devise  to  widow  of  life  estate  or  estate  for  years  charged  with  sup- 
port and  education  of  the  children,  No.  13s,  p.  76. 

Gift  to  widow  with  power  of  sale  for  specific  purposes,  No.  13t,  p.  76. 

Appointment  of  sole  trustee  with  provisions  for  a  successor,  No.  13u, 
p.  77. 

Appointment  of  joint  trustees  with  oowers  to  survivor  or  survivors, 
No.  13v,  p.  78. 

probate. 

definition,  §  77,  p.  115. 
probate  in  common  form,  §  77,  p.  116. 
probate  under  Oregon  statutes,  §  78,  p.  117. 
delay  in  applying  for,  §  78,  p.  117. 
the  proponent,  §  79,  p.  118. 
duty  of  beneficiaries,  §  79,  p.  119. 
petition  for  probate,  §  79,  p.  118. 
notice  of  hearing,  §  80,  p.  120. 
service  of  notice,  §  80,  p.  121. 
facts  required  to  be  proved,  §  81,  p.  122. 
presumption  of  sound  mind  §  81,  p.  123. 
taking  testimony,  §  81,  p.  124. 
how  proved  when  not  contested,  §  82,  p.  124. 
presumption  from  apparent  regularity  of  will,  §  82,  p.  125. 
testamentary  character  of  the  instrument,  §  83,  p.  126. 
proof  in  common  form  in  Oregon,  §  82,  p.  125. 
who  may  contest,  §  84,  p.  127. 
agreement  not  to  contest,  §  84,  p.  128. 
objections,  §  84,  p.  128. 
proceedings  for  contest,  §  84,  p.  129. 
petition  and  pleadings,  §  84,  p.  130. 
burden  and  order  of  proof,  §  85,  p.  130. 

circumstances  showing  lack  of  mental  capacity,  §  85,  p.  131. 
conditions  previous  and  subsequent  to  the  execution,  §  85,  p.  132. 
opinions  as  to  mental  capacity,  §  86,  pp.  132,  133. 
undue  influence  defined,  §    87,  p.  134. 
Nebraska  rule,  §  87,  p.  134. 

conditions  tending  to  show  undue  influence,  §  88,  p.  135. 
importunities  and  threats,  §  88,  p.  136. 
fraudulent  intent  as  an  element,  §  88,  p.  137. 
undue  influence  and  impaired  mental  capacity,  §  89,  p.  137. 
undue  influence  and  delusions,  §  89,  p.  138. 
71 — Pro.  Ad. 


1122  INDEX. 

WILLS   (Continued). 

unjust  provisions  as  proof  of  undue  influence,  §  90,  p.  138. 

presumption  from  unjust  provisions,  §  90,  p.  139. 

unexplained  gifts  to  strangers,  §  90,  p.  140. 

influence  of  medical,  legal  or  spiritual  adviser,  §  91,  p.  141. 

presumption  from  relative  amount  of  gift,  §  91,  p.  141. 

presumption  of  gift  to  draftsman  of  will,  §  92,  p.  142. 

obtaining  signature  of  testator  by  trick  or  device,  §  93,  p.  143. 

presumptions  when  will  not  read  to  or  by  testator,  §  93,  p.  144. 

general  relation  between  undue  influence  and  fraud,  §  94,  p.  145. 

testimony  of  subscribing  witnesses,  §  94,  p.  146. 

effect  of  guardianship  proceedings,  §  95,  p.  147. 

declarations  of  testator  previous  and  subsequent  to  date  of  will,  §  96, 

p.  148. 

letters  and  diaries  of  testator,  §  96,  p.  148. 

heir  or  devisee  as  witness  to  transactions  with  testator,  §  97,  p.  148. 
draftsman  as  a  witness,  §  97,  p.  149. 
declarations  of  beneficiary  against  interest,  §  97,  p.  149. 
acknowledgment  of  fraudulent  will,  §  98,  p.  150. 
effect  of  invalid  gift,  §  99,  p.  150. 
effect  of  omitting  to  mention  children,  §  100,  p.  151. 
probate  of  foreign  wills,  §  101,  p.  151. 
foreign  wills  in  Oregon,  §  101,  p.  153. 
probate  of  nuncupative  wills,  §  102,  p.  154. 
those  executed  outside  the  state  by  a  resident  of  the  state,  §  103, 

p.  155. 

taxation  of  costs  in  will  contests,  §  104,  p.  156. 
reducing  testimony  to  writing  a  useless  expense,  §  105,  p.  157. 
order  admitting  will  to  probate,  §  106,  p.  157. 
probate  as  evidence  of  title,  §  107,  p.  160. 

FORMS. 

Petition  for  probate  of  will,  No.  23,  p.  120. 
Order  for  hearing,  No.  24,  p.  121. 
Notice  of  hearing,  No.  25,  p.  122. 
Objections  to  the  probate  of  a  will,  No.  26,  p.  129. 
Petition  for  probate  of  foreign  will,  No.  27,  p.  154. 
Order  admitting  will  to  probate  and  for  letters  testamentary,  No.  28, 

p.  158. 

Order  admitting  foreign  will  to  probate,  No.  29,  p.  159. 
Order  refusing  probate  of  will,  No.  30,  p.  159. 
Order  admitting  will  to  probate — Oregon,  No.  28a,  p.  159. 
Certificate  of  probate  of  will,  No.  31,  p.  160. 


INDEX.  1123 

WILLS   (Continued). 

revocation  of  probate, 
definition,  §  108,  p.  162. 
grounds  for  revocation,  §  109,  p.  162. 

power  of  county  court  to  revoke  probate  of  will,  §  110,  p.  163. 
contest  as  a  revocation,  §  110,  p.  163. 
power  of  circuit  court  to  revoke,  §  110,  p.  164. 
proceedings  for  setting  aside  order,  §  111,  p.  164. 
revocation  by  act  on  in  equity,  §  111,  p.  165. 
facts  necessary  to  be  proved,  §  112,  p.  168. 
revocation  because  testator  is  living,  §  114,  p.  170. 
effect  of  revocation,  §  113,  p.  169. 

FORMS. 

Petition  for  revocation  of  will,  No.  32,  p.  166. 
Decree  revoking  probate,  No.  33,  p.  169. 

proceedings  to  compel  production. 

custody  of  will  by  county  court,  §  73,  p.  108. 
duty  of  person  named  as  executor,  §  74,  p.  110. 
petition  to  compel  production  of  will,  §  75,  p.  110. 
proceedings  in  court,  §  75,  p.  111. 
enforcement  of  order,  §  76,  p.  112. 

FORMS. 

Indorsement  of  wrapper  containing  will,  No.  15,  p.  109. 
Certificate  of  deposit  of  will,  No.  16,  p.  109. 
Order  for  delivery  of  will,  No.  17,  p.  109. 
Petition  for  delivery  of  will  into  court,  No.  18,  p.  111. 
Summons  to  produce  will  in  court,  No.  19,  p.  112. 
Order  for  commitment  for  contempt,  No.  20,  p.  113. 
Warrant  for  contempt,  No.  21,  p.  113. 
Commitment  for  contempt,  No.  22,  p.  114. 

republication,  §  46,  p.  67. 

revocation. 

definition,  §  59,  p.  94. 

statutory  provisions,  §  60,  p.  94. 

destruction  or  cancellation  of  will,  §  61,  p.  95. 

intent  of  testator,  §  61,  p.  96. 

effect  of  execution  of  new  will,  §  62,  p.  97. 

doctrine  of  implied  revocation,  §  63,  p.  97. 


1124  INDEX. 

WILLS   (Continued). 

effect  of  death  of  devisee  or  legatee,  §  65,  p.  100. 
sales  or  conveyances  of  property  devised  or  bequeathed,  8  64,  p.  98. 
changes  in  the  character  of  the  estate,  §  64,  p.  99. 
marriage  of  man,  §  66,  p.  101. 
marriage  of  woman,  §  66,  p.  101. 
birth  of  issue,  §  67,  p.  102. 
divorce,  §  68,  p.  102. 
the  doctrine  of  revivor,  §  69,  p.  103. 
testamentary  capacity. 

general  rule  as  to  competency  of  testator,  §  49,  p.  82. 

sound  mind  defined,  §  50,  p.  83. 

memory,  §  50,  p.  83. 

ability  to  transact  business,  §  50,  p.  84. 

physical  weakness,  §  51,  p.  85. 

old  age,  §  52,  p.  85. 

mental  weakness,  §  52,  p.  86. 

insanity,  §  53,  p.  87. 

delusions,  §  54,  p.  88. 

eccentricities,  §  54,  p.  89. 

lucid  intervals,  §  55,  p.  90. 

drunkenness  and  use  of  drugs,  §  56,  p.  90. 

lawful  influence,  §  57,  p.  91. 

distinction  between  lawful  and  unlawful  influence,  §  58,  p.  92. 

WITNESSES.    See,   also,  WILLS;    TRANSACTIONS  AND  CONVERSATIONS 
WITH  DECEASED. 

fees  of,  §  23,  p.  33. 

competency  of  witnesses  to  wills,  §  43,  p.  63. 

removal  of  incompetency,  §  43,  p.  63. 

competency  of  witnesses  to  will  as  to  mental  condition  of  testator, 

§  86,  p.  133. 

expert  witnesses  on  mental  capacity,  §  86,  p.  133. 
nonexperts,  §  86,  p.  133. 

heirs  as  to  transactions  and  conversations  with  decedent,  §  97,  p.  148. 
incompetency  of  devisees  or  legatees  who  are  not  heirs,  §  97,  p.  149. 
extent  of  disqualification  when  personal  representative  is  adverse 

party,  §  291,  p.  451. 

removal  of  disqualification,  §  294,  p.  456. 
declarations  or  admissions  to  third  parties,  §  295,  p.  457. 
wife  or  husband  of  interested  party,  §  293,  p.  454. 


INDEX.  1125 

WITNESSES  (Continued). 

witnesses  to  books  of  account,  8  305,  p.  468. 

person  claiming  as  widow  by  common  hiw  marriage,  9  150,  p.  224. 

competency  of  claimant — Oregon  rule,  9  273c,  p.  420. 

WRIT  OF  ERROR. 

when  it  lies  to  the  district  court,  9  404,  p.  806. 

when  issued,  9  485,  p.  SOT. 

petition  and  transcript,  9  485,  p.  SOS. 

supersedeas  bond,  9  486,  p.  810. 

issue  and  service  of  summons,  9  487,  p.  812. 

proceedings  in  district  court,  9  488,  p.  815. 

enforcement  of  judgment  of  the  court,  9  489,  p.  817. 

FORMS. 

Petition  in  error,  No.  211,  p.  808. 
Bond  of  plaintiff  in  error,  No.  212,  p.  811. 
Praecipe  for  summons  in  error,  No.  213,  p.  813. 
Summons  in  error,  No.  214,  p.  814. 

Judgment  affirming  order  of  county  court,  No.  215,  p.  816. 
Judgment  reversing  order  of  county  court,  No.  216,  p.  816. 

WRIT  OF  REVIEW. 

when  it  lies  to  the  circuit  court,  9  485,  p.  809. 

bond,  9  485,  p.  811. 

order  for  issue  of  writ,  9  487,  p.  813. 

service  of  writ,  9  487,  p.  815. 

hearing  on  return  of  writ,  §  488,  p.  816. 

concurrent  with  appeal,  9  488,  p.  816. 

judgment  of  circuit  court,  9  488,  p.  817. 

FORMS. 

Petition  for  writ  of  review,  No.  211a,  p.  809. 
Writ  of  review,  No.  214a,  p.  814. 

WRITINGS.     See,  also,  BOOKS  or  ACCOUNT. 
letters  and  diaries  of  testator,  9  96,  p.  148. 
acknowledgment  of  illegitimate  child,  9  438,  p.  730. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


OCT  101971 


2  2  1988 


Form  L9-Series  4939 


LAW  LIBRARY 

.UNIVERSITY  OF  CALIFOHNCT 
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MONOLITH  PORTLAND  CEMENT  COMPANY 


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